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Grounds publishedDecided 18 Nov 2014
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High Court

Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA (Yeh Mao-Yuan, third party)

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[2014] SGHC 235Case no. Suit No 379 of 2012

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  1. George Wei JC:

  2. Introduction

  3. [1] This action concerns claims made by a plaintiff-customer against a defendant-bank for a loss of shares placed in the plaintiff’s account with the defendant. The writ in this action was filed on 9 May 2012. The claims are made on the basis of an alleged breach of the defendant’s mandate with the plaintiff, and for the defendant’s alleged breach of its duty to take reasonable care. The defendant has also brought proceedings against the third party for an indemnity or contribution on the basis that any breach of duty owed to the plaintiff was caused by the misrepresentation of the third party.

  4. [2] The plaintiff, Telemedia Pacific Group Limited (“Telemedia”), is a company incorporated in the British Virgin Islands (“BVI”). Telemedia is wholly-owned by Hardy Hartanto (“Mr Hartanto”), a citizen of the Hong Kong Special Administrative Region (“Hong Kong SAR”). Mr Hartanto is also the sole director of Telemedia. Telemedia was an account holder with the Singapore branch of the defendant, Crédit Agricole (Suisse) SA (“Crédit Agricole”), a Swiss bank. The account was opened on 2 December 2010. I shall refer to it as “the Telemedia Account”.

  5. [3] Telemedia held 225m Next Generation Satellite Communications Ltd (“NexGen”) shares in the Telemedia Account. NexGen is a company listed on the Singapore Exchange (“SGX”). (NexGen was previously known as Ban Joo & Company Limited, and there was some reference to a company by that name in the evidence. For convenience, I will only use the name NexGen to refer to that company or its shares.) At the material time, about 60% of NexGen’s issued share capital was held by Telemedia.

  6. [4] In October 2011, Crédit Agricole transferred the NexGen shares out of the Telemedia Account on the instructions of the third party, Yeh Mao-Yuan, also known as Jack Yeh (“Mr Yeh”). Mr Yeh is a citizen of the Republic of China (Taiwan) who travels on a Dominica passport. He was also a business associate of Mr Hartanto. The Telemedia Account was in fact opened pursuant to a joint-investment arrangement between Mr Yeh and Mr Hartanto. Mr Yeh was the person who instructed that the 225m NexGen shares be transferred out of the Telemedia Account into an account maintained by Fullerton Capital Enterprises Limited (“Fullerton”). Fullerton was a subsidiary of Yuanta Asset Management International Limited (“Yuanta”), which was in turn owned by Mr Yeh.

  7. [5] Telemedia claims that Crédit Agricole was not authorised to act on the instructions of Mr Yeh. It submits that Crédit Agricole had, by effecting the transfers of the 225m NexGen shares pursuant to Mr Yeh’s instructions, acted in breach of its mandate, or alternatively, its duty of care owed to Telemedia.

  8. [6] Crédit Agricole’s position is that Mr Yeh was singly authorised to operate the Telemedia Account. Crédit Agricole points to the account-opening forms and supporting documents which were submitted pursuant to the opening of the Telemedia Account. These forms constitute the contractual documents establishing the banker-customer relationship between Crédit Agricole and Telemedia. The forms show both the names and signatures of Mr Yeh and Mr Hartanto and reflect both of them as being singly authorised to provide instructions to Crédit Agricole in respect of the Telemedia Account.

  9. [7] Telemedia challenges the circumstances under which Mr Yeh’s name and signature came to appear on the account-opening forms. Telemedia’s position is that Mr Hartanto was the sole authorised signatory in respect of the Telemedia Account. Telemedia alleges that a Crédit Agricole banker, Brian Goh (“Mr Goh”), handed the account-opening forms to Mr Yeh after Mr Hartanto had signed and returned the forms to Crédit Agricole. Mr Goh purportedly handed the forms to Mr Yeh without Mr Hartanto’s knowledge or consent. Telemedia claims that Mr Goh’s handing over of the account-opening forms to Mr Yeh allowed Mr Yeh to affix his signature on the forms. At the material time, Mr Goh was a director at the Singapore branch of Crédit Agricole’s private banking arm. He was the private banker responsible for managing Telemedia’s banking relationship with Crédit Agricole.

  10. [8] Crédit Agricole disputes Telemedia’s version of events. Crédit Agricole’s position is that the agreement or understanding between Mr Hartanto, Mr Yeh and Mr Goh had been that both Mr Hartanto and Mr Yeh would be singly authorised to operate the Telemedia Account. Crédit Agricole’s position is that when the completed account-opening forms were handed to Mr Goh, the forms bore the names and signatures of both Mr Hartanto and Mr Yeh, consistent with the understanding between the three of them.

  11. [9] Crédit Agricole also commenced third-party proceedings against Mr Yeh, seeking an indemnity from him in the event that Crédit Agricole is found liable. Crédit Agricole’s claim against Mr Yeh, which is predicated on the success of Telemedia’s claim against it, is that Mr Yeh had fraudulently misrepresented to Crédit Agricole that he was singly authorised to operate the Telemedia Account. Crédit Agricole alleges that it had been induced by those misrepresentations to transfer the 225m NexGen shares out of the Telemedia Account on Mr Yeh’s instructions.

  12. [10] It is important to bear in mind two features of the present proceedings. First, Telemedia’s claim is against Crédit Agricole and not Mr Yeh. No claim was brought by Telemedia against Mr Yeh in respect of his alleged unauthorised instruction to Crédit Agricole to transfer 225m shares out of the Telemedia Account. This is, at least on the face it, bizarre. Based on Telemedia’s version of events given in these proceedings, Mr Yeh would have been the main antagonist—he would have been the fraudster who covertly inserted his name into the account-opening forms without Telemedia’s knowledge or consent. But Mr Yeh is party to these proceedings only because Crédit Agricole took out third-party proceedings against him.

  13. [11] To date, neither Telemedia nor Mr Hartanto has instituted legal proceedings against Mr Yeh. Neither does it appear that any police report has been lodged against Mr Yeh. In cross-examination, Mr Hartanto appeared to agree that it was his case that Mr Yeh had defrauded him in respect of the transfer of the 225m NexGen shares (at the very least to have instructed the transfer of shares without authority). Accordingly, his complaint in this suit against Crédit Agricole was made on the basis that Mr Goh and Mr Yeh had ganged up against him. Mr Hartanto’s evidence was, however, peculiar, as he appeared to hold the view that the fault lay entirely on Crédit Agricole, and that Telemedia might not even have a cause of action against Mr Yeh. While I accept that it is Telemedia’s (or Mr Hartanto’s) sole prerogative as to who to bring proceedings against, and for what, it is still surprising, given the nature of the allegations made by Telemedia in this suit, that neither Telemedia nor Mr Hartanto has initiated an action against Mr Yeh.

  14. [12] Second, Telemedia’s claim against Crédit Agricole is premised entirely on the fact that Crédit Agricole’s transfer of the 225m NexGen shares out of the Telemedia Account was effected either without authority or in breach of its duty of care. There is no allegation of fraud, notice of fraud or conspiracy made against Crédit Agricole or Mr Goh.

  15. [13] The nub of the dispute is whether Mr Yeh was singly authorised to give instructions in relation to the Telemedia Account. This requires a determination of how Mr Yeh’s name and signature found its way onto the Telemedia account-opening forms. If Mr Yeh was authorised to give instructions in relation to the Telemedia Account, the further question that arises is whether Telemedia validly revoked Mr Yeh’s authority prior to the transfer of the 225m NexGen shares out of the Telemedia Account in October 2011. Before addressing these factual and legal disputes, I will begin by tracing the largely undisputed facts.

  16. The facts

  17. The introduction of Mr Hartanto to Mr Yeh and preliminary talks

  18. [14] The origins of the dispute date back to 2005. That was the first time Mr Hartanto was introduced to Mr Yeh in Shenzhen, the People’s Republic of China. They then met again in July or August 2010 at Marina Bay Sands (“MBS”) in Singapore. At this meeting, Mr Hartanto and Mr Yeh discussed the possibility of both of them entering into a joint investment.

  19. The joint investment: the non-recourse loan agreements and securities co-operation agreement

  20. [15] After subsequent meetings and discussions, the skeleton of the joint investment took shape. The plan was for Mr Hartanto and Mr Yeh to invest through the vehicle of a BVI company. The company eventually selected was Asia Energy Management Ltd (“Asia Energy”). Mr Hartanto claims that the entity Asia Energy was not selected till a much more advanced stage in the finalisation of the joint-investment arrangement. I will come back to this point later. Both Mr Hartanto and Mr Yeh also acted through their respective companies, Telemedia and Yuanta, in respect of the joint investment.

  21. [16] The joint-investment arrangement required both Telemedia and Asia Energy to open individual accounts with Crédit Agricole. The arrangement was structured in two stages. The first stage concerned the procurement of financing for Asia Energy. The second stage concerned the actual joint investments made by Asia Energy.

  22. [17] Under the first stage, Yuanta was to advance loans to Asia Energy on the collateral of NexGen shares. These NexGen shares were to be provided by Telemedia. Under the precise mechanics of the arrangement, the NexGen shares would be held in the Telemedia Account. Yuanta would disburse loan monies (which it procured from third-party lenders) to Asia Energy’s account with Crédit Agricole (“the Asia Energy Account”) against the transfer of NexGen shares from the Telemedia Account into Yuanta’s account with Crédit Agricole (“the Yuanta Account”). The loan amount to be disbursed to Asia Energy was to be 50–55% of the value of the collateralised NexGen shares. On top of that, Yuanta would also charge a 10% service fee for the provision of the loans to Asia Energy.

  23. [18] Yuanta was given broad powers to deal with the NexGen shares pledged as security for the loans to Asia Energy. Yuanta was entitled to sell, trade or pledge the collateralised NexGen shares at its discretion. It was entitled to hold or deposit the shares with any local or overseas depository institution or liquidation company, issuers of securities without certificates and custodians at any local or overseas bank or custodian centre.

  24. [19] In the event that the value of the pledged NexGen shares fell below 55% of the loan amount that they secured (this was referred to as a “valuation event”), Telemedia would be required to repay the loan immediately, or to restore the value of the collateral pledged to Yuanta by transferring additional NexGen shares from the Telemedia Account into the Yuanta Account. This provision was important because NexGen was on the SGX watch list at the time of the transaction.

  25. [20] The second stage of the joint-investment arrangement concerned the actual investments that were made through Asia Energy. The loans from Yuanta to Asia Energy would be applied to investments. The profits and losses from these investments were to be shared equally between Telemedia and Yuanta.

  26. [21] The two-part joint-investment arrangement described above was encapsulated in three written agreements: the first and second non-recourse loan agreements (“the NRLs”), both dated 14 November 2010; and the supplementary securities cooperation agreement (“the SCA”), dated 15 November 2010. These three agreements were in Mandarin, but translations were provided for the purposes of the trial. There was a dispute as to when (14 or 15 November 2010) and where (Hong Kong SAR or Shenzhen) these agreements were signed.

  27. The opening of the Telemedia Account and Asia Energy Account

  28. [22] It will be recalled that the joint-investment arrangement required Telemedia and Asia Energy to open accounts at Crédit Agricole. The circumstances surrounding and leading up to the opening of the Telemedia Account and Asia Energy Account are the subject of sharp disagreement between Telemedia and Crédit Agricole/Mr Yeh. Both their competing version of events will be addressed in detail below.

  29. [23] It suffices to say at this point that Mr Hartanto and Mr Yeh met with Mr Goh at the premises of the Crédit Agricole Singapore branch in early October 2010. This meeting related broadly to the joint-investment arrangement, although the specifics of what transpired are hotly disputed.

  30. [24] It is undisputed that Mr Goh handed over the account-opening forms for the Telemedia Account and Asia Energy Account to Mr Hartanto either at or after this first meeting at the Crédit Agricole premises. It is also undisputed that the account-opening forms were eventually completed and returned to Crédit Agricole. When and how each of these events occurred, however, is the subject of considerable controversy, and forms the nub of the factual dispute between the parties.

  31. The account-opening forms

  32. [25] I will now give a brief description of the Telemedia account-opening forms, which are central to this dispute. These forms make up the terms of the banker-customer relationship between Crédit Agricole and Telemedia. The forms comprised a few sets of loose documents. Three sets of these documents are of relevance: (a) the “Application to Establish Relations” form; (b) the “Certified Extract of Board Resolution” form; and (c) the “Acknowledgement Crédit Agricole’s General Conditions” form.

  33. [26] Each of these documents was dated 30 November 2010. The dates on each of these forms were filled in by Joanne Teo (“Ms Teo”). Ms Teo was Mr Goh’s assistant. She prepared the account-opening forms by filling up the main portions of the forms, such as the details of Telemedia, the names, nationalities and dates of birth of the persons authorised to act as directors, etc. She drew a small cross or used “sign here” stickers to indicate the blanks which Mr Hartanto and/or Mr Yeh were required to sign on.

  34. [27] In the Application to Establish Relations form, both Mr Hartanto’s and Mr Yeh’s names were listed under the “Initial Authorised Signatures”. The “Initial Authorised Signatures” are:

  35. No restrictions and conditions were set out. Both persons were stated to be singly authorised to operate the Telemedia Account. The names of Mr Hartanto and Mr Yeh, as well as the “singly” designation were written in the hand of Ms Teo. Mr Hartanto’s and Mr Yeh’s signatures appeared next to their names. No person signed off as a witness to this document.

  36. [28] The next document is the Certified Extract of Board Resolution form. This document sets forth a Telemedia board resolution which states that Telemedia is authorised to enter into business relations with Crédit Agricole. Under the section of the board resolution titled “Authorised Person(s)”, the names of Mr Hartanto and Mr Yeh are filled in; both are stipulated to be singly authorised to instruct Crédit Agricole on behalf of Telemedia. The names of Mr Hartanto and Mr Yeh, as well as the “singly” designation, were written in the hand of Ms Teo. The document states that it constitutes Telemedia’s mandate to Crédit Agricole and that the mandate will remain in force and effect until an amending resolution is passed by the directors of Telemedia. The Certified Extract of Board Resolution form was signed by Mr Hartanto as a director of Telemedia.

  37. [29] The final document is the Acknowledgement of Crédit Agricole’s General Conditions form. The form acknowledges that the undersigned has received a copy of the Crédit Agricole’s General Conditions, which is appended to the back of the form. This document was signed by Mr Hartanto.

  38. [30] Telemedia claims that Mr Yeh’s name and signature on the Application to Establish Relations and Certified Extract of Board Resolution forms were inserted only after the completed forms were handed to Crédit Agricole. Crédit Agricole claims that both Mr Hartanto’s and Mr Yeh’s names and signatures were present on the completed account-opening forms when they were received.

  39. [31] I pause to mention that there is a similar set of account-opening forms in respect of the Asia Energy Account. I need not go into them in detail. It is undisputed that both sets of forms (one for the Telemedia Account and one for the Asia Energy Account) were handed to Mr Hartanto together, and were returned to Crédit Agricole together. There are, however, two material differences between the Telemedia account-opening forms and the Asia Energy account-opening forms. The first is that the Asia Energy account-opening forms bore the signature of a third person—Mr Supriadi—who was Mr Hartanto’s nominee for Asia Energy. The second is that Mr Hartanto and Mr Yeh were authorised to operate the Asia Energy Account jointly (this is undisputed) rather than singly, as appears to be the case on the face of the Telemedia account-opening forms.

  40. The valuation event under the NRLs and the SCA

  41. [32] After the Telemedia and the Asia Energy accounts were opened on 2 December 2010, the joint-investment arrangement was set in motion. Yuanta procured financing from a third-party lender between February and June 2011. The total sum of financing procured was approximately S$12,936,852. The monies were transferred from the Yuanta Account to the Asia Energy Account in ten tranches. This took place against the simultaneous transfer of 765m NexGen shares, also in ten tranches, as security from the Telemedia Account to the Yuanta Account.

  42. [33] It is not disputed that the transfer of these ten tranches of NexGen shares out of the Telemedia Account were on the instructions of Mr Hartanto. It is also clear that Mr Yeh did not sign off, singly or otherwise, on these ten tranches of share transfers. With the transfer of the 765m NexGen shares out of the Telemedia Account, a residual 225m NexGen shares was left in the Telemedia Account. This remainder of 225m NexGen shares are those which Telemedia complains were transferred out of the Telemedia Account without authority.

  43. [34] The value of the pledged 765m NexGen shares fell subsequent to their transfer. This triggered a valuation event under the NRLs and the SCA. Top-up notices and reminders were issued by Yuanta to Telemedia.

  44. [35] While the issues before this court did not concern the earlier transfer of 765m NexGen shares in ten tranches, evidence was nonetheless led on the point. This was for the purpose of illustrating how the agreements and understanding between Telemedia, Mr Hartanto and Mr Yeh operated. There is no doubt that the transfer of the 765m NexGen shares occurred and that they were transferred on the sole instructions of Mr Hartanto.

  45. [36] There was also a suggestion in the evidence that the funds raised were used solely by Mr Hartanto, in breach of the agreement in the NRLs and SCA that the funds were to be applied to joint investments. This dispute, however, is not concerned with breaches under those agreements and I will not address it any further.

  46. The attempted transfer of the NexGen shares out of the Telemedia Account in September 2011

  47. [37] On 8 September 2011, Mr Yeh instructed Crédit Agricole to transfer the remaining 225m NexGen shares out of the Telemedia Account into the Yuanta Account. Mr Yeh also emailed Mr Hartanto (copying Mr Goh) on the same day, informing him that he had issued instructions for the transfer of the 225m NexGen shares. The email also reminded Mr Hartanto to make the necessary announcement on the SGX. Mr Yeh ended off the email by instructing Mr Goh to transfer the 225m NexGen shares out of the Telemedia Account “immediately”. Mr Hartanto did not respond to Mr Yeh’s email dated 8 September 2011.

  48. [38] On 12 September 2011, Mr Goh asked Ms Teo, his assistant, to contact Mr Hartanto to inform him of the transfer instructions that had been received from Mr Yeh. Mr Goh stated that even though Mr Yeh was singly authorised to sign for the Telemedia Account, he wanted to inform Mr Hartanto of the transfer as a matter of client relationship management.

  49. [39] Ms Teo attempted to telephone Mr Hartanto but was unsuccessful. She then sent an email to Mr Hartanto informing him that Crédit Agricole will be making the transfer and reminding him to make the necessary SGX announcement. An exchange of emails followed. I will examine the correspondence in detail later. In summary, Mr Hartanto’s position in his emails to Ms Teo was that Mr Yeh was not a signatory for the Telemedia Account. Mr Hartanto sent a final email on 12 September 2011 stating that he had telephoned Mr Yeh, and agreed that they will transfer the 225m NexGen shares out of the Telemedia Account.

  50. [40] Mr Hartanto also claimed in his affidavit of evidence-in-chief (“AEIC”) that he had telephoned Ms Teo in the midst of the email exchange. In that telephone conversation, Ms Teo purportedly promised not to make transfers until further instructions were received from Mr Hartanto. Ms Teo claimed that there was no such telephone call.

  51. [41] Ms Teo responded to the final email Mr Hartanto sent on 12 September 2011 the next day (13 September 2011). She also emailed Mr Hartanto a draft written instruction to effect the transfer of the 225m NexGen shares from the Telemedia Account to the Asia Energy Account for Mr Hartanto to sign and return (pursuant to Mr Hartanto’s final email sent on 12 September 2011). Mr Hartanto did not, however, sign and return the form. The transfer of the NexGen shares was therefore not effected.

  52. The actual transfer of the NexGen shares out of the Telemedia Account in October 2011

  53. [42] On 6 October 2011, Mr Yeh issued instructions to Crédit Agricole to transfer 112.5m NexGen shares out of the Telemedia Account into Fullerton’s account at Crédit Agricole (“the Fullerton Account”). Mr Goh and Ms Teo claimed that they made attempts to contact Mr Hartanto to inform him of this, and to remind him to make the necessary SGX announcements, but that they were unable to reach him.

  54. [43] On 10 October 2011, Ms Teo called Mr Yeh in relation to his transfer instructions that he provided on 6 October 2011. The telephone call was recorded and a transcript was produced in court. Ms Teo told Mr Yeh to remind Mr Hartanto to make the necessary SGX announcements because Mr Yeh was a signatory under the account and because it was Mr Yeh who signed the transfer instruction.

  55. [44] On that same day, Mr Yeh issued another written instruction to transfer the remaining 112.5m shares out of the Telemedia Account and into the Fullerton Account. Mr Goh and Ms Teo claimed that they made attempts to contact Mr Hartanto to inform him of this and to remind him to make the necessary SGX announcements, but that they were unable to reach him.

  56. [45] On 14 October 2011, Ms Teo called Mr Yeh at about 4.34pm and 4.36pm. She made the calls to confirm Mr Yeh’s 10 October 2011 transfer instruction and to remind him that the SGX announcement had to be made. The second telephone conversation also alluded to the fact that Mr Hartanto had not made an announcement in respect of the previous transfer of shares. Mr Yeh responded by saying that he had already informed Mr Hartanto to do so and that it was Mr Hartanto’s responsibility to make the announcements.

  57. [46] Crédit Agricole purportedly sent transaction advices to Telemedia informing it of each of the above share transfers on 11 and 17 October 2011 respectively. Mr Hartanto denied receiving any such transaction advices.

  58. The post-transfer confusion

  59. [47] The Telemedia Account was left with a zero-balance following the transfer out of the 225m NexGen shares in October 2011. Crédit Agricole issued a letter on 28 October 2011 informing Mr Hartanto of the zero-balance in the Telemedia Account. The letter stated that the account would be closed within 30 days in the absence of instructions to the contrary.

  60. [48] Ms Teo followed up with an email to Mr Hartanto on 31 October 2011. The email appended the letter and asked for instructions on the closure of the Telemedia Account. Mr Hartanto responded to Ms Teo’s email on the same day, requesting a confirmation that the 225m NexGen shares were still held in the Telemedia Account.

  61. [49] An exchange of emails between Mr Hartanto and Mr Goh ensued. On 1 November 2011, Mr Goh emailed Mr Hartanto, reminding him that the 225m NexGen shares had already been transferred out of the Telemedia Account. Mr Hartanto replied, asking for copies of the transfer instructions. Mr Goh responded with copies of the Application to Establish Relations form and the share transfer instructions issued by Mr Yeh on 6 and 10 October 2011.

  62. [50] Mr Hartanto emailed Mr Goh on 3 November 2011, stating:

  63. [51] Mr Goh responded on the same day, stating that the Telemedia account-opening forms made it clear that Mr Yeh was a singly authorised signatory. Mr Goh also offered to arrange a meeting between Mr Hartanto, Mr Yeh and himself before any disagreement arose. This meeting never materialised.

  64. [52] On 15 November 2011, Mr Goh sent an email to Mr Hartanto which stated as follows:

  65. [53] According to Mr Hartanto, this email came as a shock to him. He claimed that this was the first time he was informed that the account-opening forms had been handed to Mr Yeh. He claimed that he had never been informed that Mr Yeh was included as a singly authorised signatory. He claimed that this was done without his knowledge or authorisation.

  66. [54] Mr Hartanto’s response came more than a month later, in the form of a letter dated 30 December 2011 written under Telemedia’s letterhead. The length of time taken for the response is surprising. The letter stated that:

  67. [55] Mr Goh responded by email on 4 January 2012. He stated that he was not going to address Mr Hartanto’s concerns point by point. He nonetheless stated that Crédit Agricole has “never been involved in the loan agreements or transactions between yourself and [Mr Yeh]”. Mr Goh also proposed a tripartite meeting between Mr Hartanto, Mr Yeh and himself to resolve the issues.

  68. The termination of Mr Goh from the employment of Crédit Agricole

  69. [56] On 30 March 2012, Mr Goh was terminated from the employment of Crédit Agricole. The termination letter from Crédit Agricole stated that the reason for Mr Goh’s termination was his failure to “escalate [his] client’s complaints to Management despite having been notified and reminded by [his] clients on numerous occasions”. He had “breached paragraph 2.4.4 of Directive 05.01 on Clients Complaints, whereby “Any client complaint that is not reported will be considered to be an instance of professional misconduct”.” The letter went on to state that Mr Goh’s failure to do so was “considered ... a serious breach of internal policy”.

  70. The removal of Mr Yeh as an authorised signatory of the Telemedia Account

  71. [57] In May 2013, Crédit Agricole wrote to Telemedia informing them that Mr Yeh was still a singly authorised signatory for the Telemedia Account, and that unless he was removed, Crédit Agricole would have to continue taking instructions from him in accordance with their mandate.

  72. [58] Telemedia responded on 3 June 2013 by way of a letter appending a Telemedia board resolution to that effect. The letter was nonetheless written on a “without prejudice” basis and asserted that “Jack Yeh was never the authorised signatory” and that there was “absolutely no reason ... to pass a resolution to effect the removal of Jack Yeh”.

  73. [59] Crédit Agricole effected the removal of Mr Yeh as a signatory of the Telemedia Account on 7 June 2013.

  74. The factual issues

  75. [60] At the heart of the dispute lies how Mr Yeh’s signature came to appear on the Telemedia account-opening forms. Was his name inserted in accordance with an understanding between Mr Hartanto, Mr Yeh and Mr Goh? Or did Mr Goh forward the account-opening forms to Mr Yeh after they were signed and returned by Mr Hartanto, such that Mr Yeh was able to insert his name and signature without Mr Hartanto’s knowledge or consent?

  76. [61] The skeleton of events I have set out above was based largely on the undisputed facts and documents. There is a surprising dearth of contemporaneous evidence documenting the events leading up to the opening of the Telemedia Account. The evidence provided by the witnesses at the trial is therefore of particular importance.

  77. The witnesses

  78. [62] The only witness for Telemedia was Mr Hartanto. He gave evidence in English at the trial. Mr Hartanto’s recollection of events was hazy. He also appeared unfamiliar with the few documents that were placed before the court. Telemedia, in its closing submissions, admits that Mr Hartanto’s evidence was given “somewhat awkwardly”, that he was “not clear in his recollection of dates” and that there were “lapses in [his] memory”. Telemedia nonetheless submits that these factors “should not be used to adversely construe the reliability of [Mr Hartanto] as a credible witness”.

  79. [63] Five witnesses gave evidence for Crédit Agricole. The first was Mr Goh. At the time of the trial, Mr Goh was no longer an employee of Crédit Agricole nor involved in the wealth management or finance industry. He was managing a business involving backpackers’ hostels following his termination by Crédit Agricole.

  80. [64] Ms Teo was Crédit Agricole’s second witness. She was Mr Goh’s assistant while he was still at Crédit Agricole. Ms Teo was still an employee of Crédit Agricole at the time of the trial.

  81. [65] Denis Michon (“Mr Michon”) was Crédit Agricole’s third witness. Mr Michon was the head of a department within Crédit Agricole known as S2i Mailing for Crédit Agricole (Suisse) SA in Geneva, Switzerland. He gave evidence on Crédit Agricole’s internal system which managed customer information and generated statements of account and transaction advices. The S2i Mailing department also mailed all S2i documents worldwide, including Singapore. Mr Michon gave evidence that the transaction advices relating to the transfer of the 225m NexGen shares were sent to Mr Hartanto.

  82. [66] Tang Kai Ying, Sharon and Mark Nazzari Di Calabiana Willan were Crédit Agricole’s fourth and fifth witnesses. Both were transcribers engaged by Crédit Agricole to transcribe or translate certain documents. Cross-examination for these two witnesses was dispensed with.

  83. [67] The sole witness for the third party was Mr Yeh himself. Mr Yeh elected to give his evidence through an interpreter in Mandarin. The positions (in respect of the factual dispute) adopted by Crédit Agricole and Mr Yeh were largely aligned. I will therefore deal with their positions collectively, save for where there are material differences in their positions.

  84. [68] The events leading up to the opening of the Telemedia Account is the subject of deep disagreement between Telemedia and Crédit Agricole. There are at least five points of dispute between both sides. First, the number of meetings that Mr Hartanto, Mr Yeh and Mr Goh attended at Crédit Agricole’s premises. Second, when the account-opening forms were handed to Mr Hartanto and/or Mr Yeh. Third, when the account-opening forms were filled up and signed, and by whom. Fourth, when Mr Yeh appended his signature to the Telemedia account-opening form, and whether this was done with the consent and in the presence of Mr Hartanto. Fifth, whether the account-opening forms were handed to Mr Yeh without the knowledge and consent of Mr Hartanto. I will begin by describing the two competing sequences of events put forth by Telemedia and Crédit Agricole.

  85. Telemedia’s position

  86. The first Crédit Agricole meeting

  87. [69] Mr Hartanto claimed that he was first introduced to Mr Goh in October 2010 at the first meeting at Crédit Agricole’s premises. Mr Hartanto’s position was that at the first meeting, Mr Yeh and himself informed Mr Goh of their intention to enter into a joint investment. Mr Hartanto claimed that the details and structure of the joint investment were yet to be firmed up at the time of the first meeting at Crédit Agricole.

  88. [70] Mr Hartanto’s evidence was that he and Mr Yeh wanted to know the financing arrangements that Crédit Agricole could provide. Mr Goh purportedly told them that it would be difficult for Asia Energy to secure credit facilities from Crédit Agricole as it was not an existing client. Mr Yeh then suggested that Yuanta raise the loan instead, since Yuanta already had an existing credit facility with Crédit Agricole. Mr Hartanto claimed that he was under the impression that the loans for financing the joint investment would be provided by Crédit Agricole.

  89. [71] Mr Hartanto also claimed that there was a discussion as to whether Yuanta had sufficient funds to acquire NexGen shares for the purpose of the joint investment. Also broached was the topic of the identity of the joint-venture vehicle to be used. Mr Hartanto claimed that the identity of the joint-venture vehicle was still undecided at the time of the first meeting at Crédit Agricole’s premises in October 2010.

  90. The second Crédit Agricole meeting

  91. [72] Mr Hartanto’s evidence was that a second meeting was held at Crédit Agricole’s premises in early November 2010. Mr Hartanto claimed that Mr Goh handed him the account-opening forms for the Telemedia Account and Asia Energy Account at this meeting.

  92. [73] Mr Hartanto’s evidence as to whether he had signed some of the forms at this meeting is unclear. But it is clear that he did not return the account-opening forms to Mr Goh at the close of this meeting. Rather, he held on to them until the third meeting at Crédit Agricole’s premises where he returned the completed forms to Mr Goh.

  93. The meetings in Shenzhen/Hong Kong SAR

  94. [74] Mr Hartanto’s evidence was that there was a meeting between himself and Mr Yeh in Shenzhen on 14 November 2010. Mr Goh was not present. The next day, there was another meeting in Hong Kong SAR between Mr Hartanto and Mr Yeh, where they signed the NRLs and the SCA.

  95. The third Crédit Agricole meeting

  96. [75] Mr Hartanto claimed that there was a third meeting at Crédit Agricole’s premises on or around 30 November 2010 (Mr Hartanto’s evidence as to the precise date of this meeting was inconsistent). At this meeting, Mr Hartanto claimed that he signed the account-opening forms and returned them to Mr Goh (subject to the qualification above that Mr Hartanto may have already signed some of the forms at the second Crédit Agricole meeting).

  97. [76] Telemedia’s case is that the Telemedia account-opening forms only bore the name and signature of Mr Hartanto as being singly authorised to operate the Telemedia Account when they were returned to Mr Goh at the third Crédit Agricole meeting. Telemedia’s case is that Mr Goh must have subsequently handed the forms to Mr Yeh, thereby allowing Mr Yeh to affix his name and signature such that it would appear that he was also singly authorised to operate the Telemedia Account.

  98. Crédit Agricole’s position

  99. [77] The positions of Mr Yeh and Mr Goh were largely similar. According to Mr Yeh and Mr Goh, there were only two meetings held at Crédit Agricole’s premises (as opposed to Mr Hartanto’s position that there were three).

  100. The first Crédit Agricole meeting

  101. [78] The first took place in October 2010. At that meeting, Mr Hartanto and Mr Yeh had already largely agreed on the structure of the joint investment, including the rights of signing for the Telemedia Account and Asia Energy Account. The structure of the joint investment and the rights of signing were agreed on in previous meetings between Mr Hartanto, Mr Yeh and Mr Goh at MBS and Fullerton Hotel.

  102. [79] The Asia Energy Account was to be operated jointly by Mr Hartanto and Mr Yeh while the Telemedia Account was to be operated singly by either of them. At the end of the first meeting, Mr Goh handed the account-opening forms for both the Telemedia Account and Asia Energy Account to Mr Hartanto and Mr Yeh.

  103. [80] According to Mr Yeh, immediately after this meeting, Mr Hartanto and he proceeded to MBS, where Mr Hartanto signed the Telemedia account-opening forms, while Mr Yeh signed the Asia Energy account-opening forms. Mr Hartanto then took the forms away for the purpose of collating the remaining documents and obtaining Mr Supriadi’s signature on the Asia Energy account-opening forms.

  104. The second Crédit Agricole meeting

  105. [81] Mr Yeh and Mr Goh claimed that there was a second meeting held at Crédit Agricole’s premises in early November 2010. The meeting was for the purpose of opening the accounts. However, Mr Hartanto had been unable to obtain all the requisite supporting documents by that meeting. As a result, the meeting was a short one.

  106. [82] According to Mr Goh, at that meeting, Mr Hartanto had placed all the account-opening forms and documents into an envelope. Mr Hartanto informed Mr Goh that the documentation was incomplete. Mr Yeh then volunteered to consolidate the documents and return them. Mr Goh therefore handed the envelope over to Mr Yeh in the presence of Mr Hartanto.

  107. [83] Mr Yeh’s evidence was that after Mr Hartanto and himself had left Crédit Agricole’s premises, both of them returned to Mr Yeh’s hotel. Mr Yeh Yeh examined the documents and discovered that Mr Supriadi had yet to sign on the account-opening forms for Asia Energy. Mr Yeh therefore handed the forms back to Mr Hartanto for him to obtain Mr Supriadi’s signature and to consolidate the remaining documents.

  108. The meetings in Shenzhen/Hong Kong SAR

  109. [84] Mr Yeh’s evidence was that he met Mr Hartanto in Shenzhen on 14 and 15 November 2010. At those meetings, they signed the NRLs as well as the SCA. Further, both of them finalised the account-opening forms for both the Telemedia Account and Asia Energy Account. According to Mr Yeh, Mr Hartanto again reiterated that Mr Yeh was to be a singly authorised signatory for the Telemedia Account.

  110. [85] Mr Yeh claimed that once they resolved the outstanding issues in Shenzhen, he kept the account-opening forms and documents and couriered them to Mr Goh in Singapore on 15 November 2010.

  111. [86] Mr Goh’s evidence was that he received the forms by courier on 16 November 2010. He then passed the completed forms to Ms Teo for review. Mr Goh noticed that Mr Yeh was a singly authorised signatory on the Telemedia Account—this was consistent with the impression or understanding that he had from the first Crédit Agricole meeting, that both Mr Hartanto and Mr Yeh were to be able to operate the Telemedia Account singly.

  112. My decision on the factual issues

  113. [87] The versions of events provided by both sides are diametrically opposed. Their divergence is so sharp that either has to be accepted or rejected in its entirety. There is no defensible middle ground between both positions. It is my judgment that the version of events put forth by Crédit Agricole and Mr Yeh is the correct one. I accept the evidence of Mr Yeh and Mr Goh, and prefer it over Mr Hartanto’s. I make this finding for three reasons.

  114. [88] First, Mr Hartanto’s evidence is unsatisfactory. There were numerous and significant departures in Mr Hartanto’s oral evidence from the position taken in Telemedia’s pleadings and Mr Hartanto’s AEIC. Second, Mr Hartanto’s position (or any of the few iterations of it) did not cohere with the contemporaneous documentary evidence, in particular, Ms Teo’s email to Mr Yeh dated 16 November 2010. Third, Mr Hartanto’s half-hearted response when he discovered that Mr Yeh was singly authorised to transfer shares out of the Telemedia Account is consistent with the version of events given by Crédit Agricole and Mr Yeh. I will address each in turn.

  115. [89] As a preface to the discussion of these reasons, I would point out that the upshot of Telemedia’s case and Mr Hartanto’s evidence is that Mr Yeh had a small role, if any at all, to play in the account-opening process. From the moment Mr Goh handed the account-opening forms to Mr Hartanto, to the moment Mr Hartanto returned the signed and completed forms back to Mr Goh, Mr Yeh had little to do with the forms. Mr Yeh was not involved in the collation of the various documents required for the opening of the Telemedia Account and Asia Energy Account. He was also not involved in the completion of the forms. All he did was pen his signature on the account-opening forms for the Asia Energy Account in the presence of Mr Hartanto and Mr Goh. It will be seen that this position is untenable.

  116. Telemedia’s position is compromised because of Mr Hartanto’s unsatisfactory evidence

  117. [90] Mr Hartanto’s eventual evidence was that there were three meetings at Crédit Agricole’s premises. At the first meeting in early October 2010, there were preliminary discussions between himself, Mr Yeh and Mr Goh as to the structure of the joint investment. At the second meeting in early November 2010, he was issued the account-opening forms by Mr Goh. At the third meeting on or around 30 November 2010, he returned the account-opening forms to Mr Goh. This position was reached, however, only after making a few significant shifts in the course of his oral evidence.

  118. [91] Telemedia’s pleaded position is that there were only two meetings at Crédit Agricole’s premises. The first was in October 2010 and the second on 30 November 2010. At the first meeting, preliminary discussions took place. There was no talk of opening accounts or the handing over of any forms. At the second meeting, Mr Goh handed two sets of account-opening forms to Mr Hartanto. Mr Hartanto signed these forms in the presence of Mr Goh and returned the forms to him at that meeting.

  119. [92] Telemedia’s pleaded position is consistent with a letter dated 26 April 2012 sent from Telemedia’s solicitors to Crédit Agricole’s solicitors. The letter stated that the “... [account-opening forms] which were handed to [Mr Hartanto] on 30 November 2010 were signed and returned to [Mr Goh] on the very day itself”. Telemedia’s pleaded position is also in line with the position taken in Mr Hartanto’s AEIC.

  120. [93] This initial position, however, was an impossible one to take. The account-opening forms for the Asia Energy Account bore the signatures of not just Mr Hartanto and Mr Yeh. The forms also bore the signature of Mr Hartanto’s nominee, Mr Supriadi. Nowhere was it alleged that Mr Supriadi, who was based in Indonesia at that time, was present at the meeting at Crédit Agricole’s premises in Singapore on 30 November 2010. Mr Supriadi’s signature on the Asia Energy account-opening form meant either that (a) Mr Supriadi was present at the meeting on 30 November 2010; or (b) Mr Hartanto had to bring the account-opening forms back in order to obtain Mr Supriadi’s signature. Neither of these possibilities is consistent with Telemedia’s initial position.

  121. [94] When Mr Hartanto gave evidence in cross-examination on the first day of the trial, he departed from the initial position stated in Telemedia’s pleadings and his AEIC. This was the first time Mr Hartanto gave his version of events that there were three meetings at Crédit Agricole’s premises instead of two. His oral evidence was that Mr Goh gave him the account-opening forms at a meeting on 14 November 2010 before the completed forms were returned at the meeting on 30 November 2010. This meeting of 14 November 2010 had gone hitherto unmentioned by Telemedia and Mr Hartanto their pleadings and AEIC respectively.

  122. [95] On the first day of trial, Mr Hartanto went on to state that he did not sign any of the account-opening forms which were given to him at the meeting on 14 November 2010. He merely collected the forms and brought them back to Hong Kong to prepare the supporting documents needed for opening the accounts. This included obtaining Mr Supriadi’s signature on the documents Mr Supriadi was required to sign on. After all the documents had been prepared, Mr Hartanto met up with Mr Yeh and Mr Goh at Crédit Agricole’s premises a third time on 25 or 26 November 2010 (as opposed to the initial position that this meeting occurred on 30 November 2010). At this final meeting, Mr Yeh and Mr Hartanto signed all the account-opening forms in the presence of Mr Goh. The forms were then returned to Mr Goh immediately after they were signed.

  123. [96] On the second day of the trial, Mr Hartanto’s evidence (given the previous day) that he signed all the account-opening forms on 25 or 26 November 2010 was subject to intense forensic cross-examination. An examination of Mr Hartanto’s signatures on the two sets of account-opening forms reveal that he had used three different pens to sign both sets of forms. Mr Hartanto accepted as much under cross-examination. Most of the Telemedia account-opening forms were signed with a black pen. A blue pen was used to sign the “General Conditions for the Grant of Collateralised Credits” form for the Telemedia Account. Another blue pen was used to sign the “Application to Establish Relations” form and the “Security Agreement” form for the Asia Energy Account.

  124. [97] Counsel for Crédit Agricole, Mr Gary Low, put to Mr Hartanto that all the account-opening forms could not have been signed at the same meeting on the same day. If that were the case, there would be no reason for Mr Hartanto to have used three different pens. Even more so since Mr Hartanto had admitted that he signed the documents without looking through them. To his mind, they were standard form documents, and the spaces where he was required to sign on were already previously marked out with crosses/stickers by Ms Teo.

  125. [98] Mr Hartanto was unable to provide a convincing explanation for his use of three different pens. He evaded Mr Low’s questions and made the excuse that the original documents had only been placed before him on that day of trial. When pressed by Mr Low, Mr Hartanto stated that he could not recall how many pens he used or how many times he had met Mr Goh to sign the account-opening forms. When he was asked if there was more than one meeting at which he signed the account-opening forms, Mr Hartanto said that he could only remember one meeting at the end of November.

  126. [99] Mr Hartanto’s evolving evidence compromised both the reliability and integrity of Telemedia’s position. The departures from Telemedia’s pleadings and his AEIC are significant ones. Central to this dispute is the movement of the account-opening forms and when they were signed. Yet, Mr Hartanto’s evidence on these very events wavered and shifted.

  127. [100] In his evidence on the first day of trial, he introduced a meeting on 14 November 2010, which went previously unmentioned. He claimed that he brought the account-opening forms to Hong Kong SAR after collecting them at Crédit Agricole’s premises on 14 November 2010, whereas it was previously maintained that the receipt, signing and return of the account-opening forms happened within the span of one meeting on 30 November 2010. He was also unable to explain why he used three different pens to sign the account-opening forms in the light of his own evidence that they were signed on the same occasion and without perusal.

  128. [101] In contrast, the evidence of Mr Yeh and Mr Goh on the number of meetings, the movement of the forms, and where they were signed was reliable and unshaken in cross-examination. Both their versions of events were coherent and largely compatible with the other.

  129. Telemedia’s position is inconsistent with the documentary evidence leading up to the opening of the Telemedia Account and Asia Energy Account

  130. [102] The period leading up to the opening of the Telemedia Account and Asia Energy Account—October 2010 to 2 December 2010—was characterised by a near complete absence of contemporaneous documentation. The only documentary evidence placed before the court was:

  131. (a) the NRLs and SCA dated 14 and 15 November 2010;

  132. (b) two emails from Ms Teo to Mr Yeh, both dated 16 November 2010, requesting for documents required for Asia Energy and other BVI companies;

  133. (c) an email from Ms Teo to Patty Chan (“Ms Chan”), Mr Hartanto’s personal assistant, dated 16 November 2010, enclosing blank Security Agreement forms (one of the forms that were required for opening an account at Crédit Agricole), requesting that Mr Hartanto sign and affix the Telemedia corporate seal to the blank Security Agreement form, and to courier the completed form to Crédit Agricole;

  134. (d) an email from Ms Teo to Ms Chan dated 26 November 2010 requesting that Ms Chan obtain relevant signatures for certain declarations of trust; and

  135. (e) the two sets of completed and signed account-opening forms dated 30 November 2010.

  136. Of particular interest are the emails from Ms Teo to Mr Yeh and Ms Chan dated 16 November 2010 at (b) and (c). In my view, the emails sent that day undermine Mr Hartanto’s evidence and support the evidence of Mr Yeh and Mr Goh.

  137. [103] It will be recalled that Mr Yeh’s evidence is that on 15 November 2010, he couriered the completed account-opening forms from Shenzhen to Mr Goh in Singapore. Mr Goh’s evidence was that he received the completed account-opening forms by courier on 16 November 2010. After he received the forms, Mr Goh asked Ms Teo to review the completed forms and ensure that everything was in order. The emails Ms Teo sent to Mr Yeh and Ms Chan on 16 November 2010 are consistent with this sequence of events.

  138. [104] Further, these emails undermine Mr Hartanto’s version of events in two ways. First, they cast doubt on Mr Hartanto’s position that Mr Yeh was not involved in the collation and preparation of the supporting documents for the opening of both accounts (see [89] above). It would be out of the ordinary for Ms Teo to send an email to Mr Yeh requesting for supporting documents for no apparent reason if he did not assist with the collation of the supporting documents or the account-opening process. The email suggests that Mr Yeh played a more active role than Mr Hartanto was letting on. Indeed, it bears repeating that Mr Hartanto and Mr Yeh were engaged in a process to set up their joint-venture investment plan that was embodied in the NRLs and SCA.

  139. [105] Second, Ms Teo’s email to Ms Chan suggests that the completed account-opening forms had been returned to Crédit Agricole by 16 November 2010. It suggests that Mr Hartanto had missed out the Security Agreement form, and that his signature was required. If Mr Hartanto’s version is true, and the account-opening forms were only returned to Crédit Agricole on 25 or 26 November 2010, it is inexplicable that Ms Teo would arbitrarily select one out of a number of account-opening forms to send to Ms Chan for Mr Hartanto to sign and affix Telemedia’s corporate seal on 16 November 2010, before the entire set of completed and signed documents were returned to Crédit Agricole.

  140. Telemedia’s position is inconsistent with Mr Hartanto’s reaction when he discovered that Mr Yeh was singly authorised to transfer shares out of the Telemedia Account

  141. [106] Mr Hartanto’s reaction when he purportedly discovered that Mr Yeh was singly authorised to transfer shares out of the Telemedia Account is inconsistent with his version of events. I say this based on his response to two critical emails: (a) Mr Yeh’s email of 8 September 2011 to Mr Hartanto (copying Mr Goh) instructing that the 225m NexGen shares be transferred out of the Telemedia Account and into the Yuanta Account; and (b) Ms Teo’s email on 12 September 2011 informing Mr Hartanto that Mr Yeh had given instructions to transfer the 225m NexGen shares, and reminding Mr Hartanto to make an SGX announcement on the transfer.

  142. (1) Mr Hartanto’s response to Mr Yeh’s email dated 8 September 2011

  143. [107] A valuation event occurred in 2011 and top-up notices were apparently issued by Yuanta to Telemedia after this had occurred. On 8 September 2011, Mr Yeh sent an email to Mr Hartanto copying Mr Goh. The email was written in Mandarin, but translated for the purposes of the trial. I reproduce the translation in full for convenience:

  144. I should also mention that despite its importance, this email was not disclosed by Telemedia in discovery, nor was any mention of it made in Mr Hartanto’s AEIC.

  145. [108] Mr Hartanto did not respond to this email nor did he dispute Mr Yeh’s authority to instruct Mr Goh to transfer the 225m NexGen shares out of the Telemedia Account.

  146. [109] In cross-examination, Mr Hartanto claimed that he was unaware of what was stated in this email, for reasons that I shall come to in a moment. Instead, Mr Hartanto claimed that he was only aware that Mr Yeh had instructed Crédit Agricole to transfer the shares on 12 September 2011, when Ms Teo sent him the SGX announcement reminder (see [38] above).

  147. [110] If Mr Hartanto had read the 8 September 2011 email, his failure to respond to dispute Mr Yeh’s authority to give instructions for the transfer of the NexGen shares would be telling. If Mr Yeh was not authorised to instruct the transfer, one would have expected a robust response from Mr Hartanto denying Mr Yeh’s authority to do so. Instead, nothing was heard from Mr Hartanto.

  148. [111] Mr Hartanto’s excuse in cross-examination for failing to respond to the email was that it was written in Mandarin and not English. Mr Hartanto added that he could not read Mandarin proficiently and that he could not fully understand the language. In cross-examination, Mr Hartanto testified that his proficiency in reading and understanding Mandarin was about fifty percent. That said, it bears repeating that Mr Yeh does not speak English and that while Mr Hartanto is not a hundred percent proficient in Mandarin, he very likely possesses sufficient understanding of spoken Mandarin to conduct business discussions with Mr Yeh.

  149. [112] Counsel for Crédit Agricole, Mr Low, suggested to Mr Hartanto that all previous communications between Mr Hartanto and Mr Yeh had been in Mandarin. Further, the NRLs and SCA, which Mr Hartanto signed, were both in Mandarin as well. Mr Hartanto therefore must have had a sufficient degree of proficiency in reading Mandarin. Mr Hartanto’s response was that in those cases, he would have his assistant translate the documents translated. When asked why he did not ask his assistant to translate the 8 September 2011 email, Mr Hartanto responded that he was “not in office that day”.

  150. [113] When Mr Hartanto was pressed on the excuse of his language deficiency, he provided a different explanation for his failure to respond to the email. He stated that he understood Mr Yeh’s 8 September 2011 email to mean that Mr Yeh was merely making a request for the shares to be transferred as he did not have the power to give such an instruction.

  151. [114] Mr Low then suggested to Mr Hartanto that the last line of the 8 September 2011 email was a direction to Mr Goh to effect the transfer. Mr Yeh was clearly not waiting for Mr Hartanto to effect the transfer, as Mr Hartanto appeared to be suggesting. To this, Mr Hartanto’s response was: “[s]orry ... I don’t read this email on the 8th September ... 8th September is in Chinese and I don’t read this ...”. Mr Hartanto’s position had shifted yet again. He claimed that he had not read the email at all because it was in Mandarin. Mr Hartanto accepted after he had read the English translation of the email in court that Mr Yeh was giving instructions for the shares to be transferred immediately.

  152. [115] Mr Hartanto subsequently went on to accept that he was aware that Mr Yeh had given instructions for the transfer of the 225m NexGen shares as early as 8 September 2011. When asked why he did not then reply to Mr Yeh’s email dated 8 September 2011 to deny Mr Yeh’s authority to instruct the transfer of the shares, Mr Hartanto responded that he did not think that it was necessary for him to reply. To his mind, Mr Yeh did not have the authority to instruct the transfer and there was therefore no need to respond to assert that.

  153. [116] From only understanding the email partially, to misinterpreting the email, to not reading the email at all, to understanding the effect of the email but not believing that it was necessary to deny Mr Yeh’s authority, I find Mr Hartanto’s evidence on why he did not respond to the 8 September 2011 email unpersuasive. I am of the view that Mr Hartanto read and understood the email, or at least had the email explained to him by his assistant. He thereafter chose not to respond and deny Mr Yeh’s authority.

  154. [117] In assessing the evidence on this point, I note that the main body of the email appears to request, albeit in strong terms, that Mr Hartanto “please transfer on a temporary basis the 225 million shares” to Yuanta. The final section of the email which is addressed to Mr Goh, however, directs Mr Goh to transfer the shares immediately and notify Mr Hartanto once it is done. In my view, the reasonable interpretation is that there was a clear instruction from Mr Yeh to Mr Goh to effect the transfer of the shares.

  155. (2) Mr Hartanto’s response to Ms Teo’s reminder email dated 12 September 2011

  156. [118] I next turn to Mr Hartanto’s response to Ms Teo’s reminder email sent on 12 September 2011. This email is crucial because it was the first time Crédit Agricole made it unequivocally clear to Mr Hartanto that it was about to transfer the 225m NexGen shares out of the Telemedia Account on Mr Yeh’s sole instructions.

  157. [119] This time, Mr Hartanto did respond. He replied to Ms Teo’s email notification, denying Mr Yeh’s authority. But he only went so far, and no further. Mr Hartanto made no further attempt to investigate how Mr Yeh came to be singly authorised to operate the Telemedia Account. He did not try to find out how Crédit Agricole came to be of the view that Mr Yeh was singly authorised to operate the Telemedia Account. He did not instruct Crédit Agricole not to effect any transfers on the instructions of Mr Yeh because he was not a singly authorised signatory. He took no steps to remove Mr Yeh as a signatory to the Telemedia Account.

  158. [120] I will review the correspondence between Mr Hartanto and Ms Teo on 12 September 2011 and 13 September 2011 in detail, before turning to Mr Hartanto’s and Ms Teo’s evidence on the purported telephone calls that took place on 12 September 2011. I will then proceed to elaborate on why Mr Hartanto’s response was inconsistent with Telemedia’s position.

  159. [121] On 12 September 2011, and on the back of Mr Yeh’s request and email dated 8 September 2011 (just discussed above), Mr Goh asked Ms Teo to contact Mr Hartanto and inform him of the transfer instructions that had been received from Mr Yeh. Mr Goh stated that even though Mr Yeh was singly authorised to operate the Telemedia Account, he wanted to inform Mr Hartanto of the transfer as a matter of client relationship management.

  160. [122] Ms Teo attempted to telephone Mr Hartanto but was unsuccessful. She then sent an email to Mr Hartanto at 3.41pm informing him that Crédit Agricole will be making the transfer pursuant to Mr Yeh’s instructions. The email also reminded Mr Hartanto to make the necessary SGX announcement.

  161. [123] Mr Hartanto responded at 3.52pm stating tersely that “[Telemedia’s] signature is not [Mr Yeh] [sic]. Please understand.”

  162. [124] Ms Teo responded by email at 6.11pm stating that Mr Yeh had been singly authorised to operate the Telemedia Account since its opening, and that Crédit Agricole was required to accept Mr Yeh’s instructions. Ms Teo requested that Mr Hartanto liaise with Mr Yeh on the transfer of the NexGen shares. She copied both Mr Yeh and Mr Goh in this email.

  163. [125] Mr Hartanto responded with four emails:

  164. (a) At 6.18pm, he wrote: “I think you are wrong as [Mr Yeh] is not the director of [Telemedia] and I think it is wrong [that] he is the signer [sic] of [Telemedia]???”.

  165. (b) At 6.21pm, he sent another email stating: “[Ms Teo], I ask to [sic] [Mr Goh] about the deal with [Mr Yeh] for the lease agreement for the 825 millions [sic] shares of [NexGen] from [Telemedia] to [Asia Energy] through [Yuanta]”.

  166. (c) At 6.53pm, his third email stated that he “had just talked to [Mr Yeh]” and that “Telemedia will transfer 225 million shares to [Asia Energy]”.

  167. (d) At 6.54pm, Mr Hartanto asked for confirmation that the signature requirement for the Asia Energy Account was the joint signatures of Mr Yeh and Mr Supriadi and not “single signatory”.

  168. Ms Teo did not respond to any of these emails on 12 September 2011. Her email response came only the next day, on 13 September 2011.

  169. [126] Mr Hartanto also claimed in his AEIC that he had made a telephone call to Ms Teo before he sent the 6.53pm email on 12 September 2011. Whether this telephone call occurred, and if so, what was said in the conversation is important. I will return to it in a moment.

  170. [127] In Ms Teo’s reply to the slew of emails from Mr Hartanto on 13 September 2011, she stated that the Asia Energy Account required the joint signatures of Mr Hartanto and Mr Yeh. While Mr Supriadi was a director of Asia Energy, he was not operating the account. It appears that Mr Hartanto had either forgotten, or was unsure, as to who were the authorised signatories of the Asia Energy Account, which was the joint-venture account. Ms Teo subsequently emailed Mr Hartanto a draft written instruction to effect the transfer of the 225m NexGen shares from the Telemedia Account to the Asia Energy Account for Mr Hartanto to sign and return.

  171. [128] Mr Hartanto did not, however, sign and return the form. The transfer of the 225m NexGen shares was therefore not effected in September 2011. It was only subsequently in October 2011 that the shares were actually transferred out of the Telemedia Account on Mr Yeh’s instructions.

  172. [129] Having laid out the email communication between Mr Hartanto and Ms Teo, I return to Mr Hartanto’s evidence on the purported telephone call to Ms Teo on 12 September 2011. Mr Hartanto claimed that he had called Ms Teo before he sent her the 6.53pm email. This would presumably have been after he sent the 6.21pm email to Ms Teo on the same day.

  173. [130] In that telephone conversation, he purportedly told Ms Teo repeatedly that no transfer of the NexGen shares should be effected until he gave further instructions. He reiterated that Mr Yeh was not a singly authorised signatory of the Telemedia Account. Ms Teo purportedly promised him that no transfer would be made until Crédit Agricole received further instructions from Mr Hartanto.

  174. [131] In cross-examination, however, when Mr Hartanto was asked by Crédit Agricole’s counsel, Mr Low, whether there had been any other communication between himself and Ms Teo or Mr Yeh apart from the emails and telephone conversation with Mr Yeh (referred to in the 6.53pm email at [125(c)] above), Mr Hartanto said he could not remember. When asked by the court whether there was just one telephone conversation (ie, the telephone conversation with Mr Yeh), Mr Hartanto said there was “[o]nly one ...”.

  175. [132] Mr Hartanto was then asked numerous times by Mr Low whether there were any other communications apart from the emails and the telephone call to Mr Yeh. Mr Hartanto stated that he could not remember. It was only when Mr Low referred Mr Hartanto to his AEIC that Mr Hartanto recalled the telephone call that he purportedly made to Ms Teo before he sent the 6.53pm email. He admitted that “just now I forgotten”.

  176. [133] In my view, this slip in Mr Hartanto’s oral evidence is a significant one. It shows that Mr Hartanto did not have a telephone conversation with Ms Teo. I am aware of the recent observations of the Court of Appeal in Sandz Solutions (Singapore) Pte Ltd v Strategic Worldwide Assets Ltd [2014] 3 SLR 562 at [56] that the mere fact that there are gaps in the witness’s memory does not compel the conclusion that the evidence is less credible. Especially so in cases where a long period of time has elapsed between the events as they occurred and the witness’s oral testimony in court. I am aware that Mr Hartanto may have been frazzled or unsettled in the heat of cross-examination. But the point still remains that the telephone call to Ms Teo was crucial. It was Mr Hartanto’s only instruction to Crédit Agricole not to transfer shares on the instructions of Mr Yeh. I do not accept that Mr Hartanto would have “forgotten” such a telephone call if it had occurred.

  177. [134] My finding that Mr Hartanto did not telephone Ms Teo that day is reinforced by two further points. First, there is no mention of the telephone call in any of Mr Hartanto’s subsequent emails to Ms Teo. It would be surprising if such an important telephone call had been made but the contents of it were not set out or at least alluded to in Mr Hartanto’s subsequent email to Ms Teo.

  178. [135] Second, Ms Teo’s evidence was that she left the Crédit Agricole office shortly after receiving Mr Hartanto’s 6.18pm email. While it was implicit in Ms Teo’s evidence in cross-examination that she did not speak to Mr Hartanto over the telephone on 12 or 13 September 2011, she was not cross-examined specifically on the point. Counsel for Telemedia, Mr N Sreenivasan SC (“Mr Sreenivasan”), did not put to Ms Teo that such a telephone call had occurred, in contravention of the rule in Browne v Dunn (1893) 6 R 67. The court therefore did not have a direct explanation from Ms Teo about what had happened. Her evidence nonetheless is consistent with the fact that there had been no telephone call from Mr Hartanto to her.

  179. [136] I accordingly find that Telemedia has not proven that Mr Hartanto telephoned Ms Teo on 12 September 2011. The extent of his communication with Crédit Agricole is contained in his email responses to Ms Teo described above.

  180. [137] I have mentioned that the upshot of Telemedia’s position is that Mr Yeh had fraudulently inserted his name as a singly-authorised signatory for the Telemedia Account. This was done without Mr Hartanto’s knowledge or consent. Being held in that account was 225m NexGen shares apparently belonging to Telemedia. On Telemedia’s version of events, an unauthorised third party, Mr Yeh, who had obtained access to the Telemedia Account through fraudulent means, was now purporting to transfer the NexGen shares out of the account against Mr Hartanto’s wishes. Further, the bank, Crédit Agricole, appeared to be taking the position that it was authorised to take instructions from the fraudster. If this was true, I doubt Mr Hartanto’s response would have been as tepid as it was. He did not instruct Crédit Agricole not to act on the instructions of Mr Yeh. He did not attempt to remove Mr Yeh as a signatory. He did not even attempt to find out why Crédit Agricole was of the view that Mr Yeh was a singly authorised signatory.

  181. [138] For the reasons stated above, I prefer the evidence of Mr Yeh and Mr Goh over that of Mr Hartanto. I accordingly accept Crédit Agricole’s version of the events leading up to the opening of the Telemedia Account and Asia Energy Account on 2 December 2011.

  182. Other factual findings and observations

  183. [139] Having decided the main factual contention between the parties, there remain a few peripheral factual disputes and other observations which I will address in brief. In my view, the points that follow are consistent with and reinforce the findings I have made above.

  184. (1) The number of meetings at Crédit Agricole’s premises

  185. [140] As I have accepted Crédit Agricole’s position that only two meetings took place at Crédit Agricole’s premises, I will touch on some other evidential points that reinforce this finding.

  186. [141] Mr Hartanto justified his position that there were three meetings at Crédit Agricole’s premises by asserting that the first meeting was a preliminary one where some discussions were afoot, but nothing concrete was established. The account-opening forms were therefore not handed to him at the first meeting in October 2011. He relied on two points to show that the first meeting involved merely preliminary discussions. In my view, both those points were weak ones.

  187. [142] First, Mr Hartanto’s position was that he and Mr Yeh had yet to agree on Asia Energy as the joint-venture vehicle at the first Crédit Agricole meeting. Therefore, much time at the first meeting was spent discussing (inconclusively) which entity would be used as the joint-venture vehicle. This was used to contradict Mr Yeh’s and Mr Goh’s evidence that Asia Energy had been decided as the joint-venture vehicle prior to the first meeting, which would have allowed the account-opening forms for both the Telemedia Account and Asia Energy Account to be handed over to Mr Hartanto. In support of his position, Mr Hartanto claimed in cross-examination that Asia Energy had not even been incorporated in early October 2010. He further stated that they had only decided on Asia Energy as the joint-venture vehicle on 14 November 2010.

  188. [143] Contrary to Mr Hartanto’s assertion, however, Asia Energy was incorporated on 28 November 2006. This was proved with a Certificate of Incumbency for Asia Energy that was introduced into evidence the day after Mr Hartanto made his assertion. Mr Hartanto then altered his position and explained that although the company had been incorporated at the time of the first meeting, he had initially intended to use a new joint-venture vehicle. It was only when his accountant reminded him on 16 November 2010 that he had an existing unused BVI company, Asia Energy, that they decided to use Asia Energy rather than create a new one.

  189. [144] The second point Mr Hartanto relied on to establish the preliminary nature of the first meeting was the role that Crédit Agricole was to play in the joint investment between himself and Mr Yeh. I shall deal with this in the next sub-section.

  190. (2) The role that Crédit Agricole played in the joint-investment arrangement between Mr Hartanto and Mr Yeh

  191. [145] Mr Hartanto took the position that Crédit Agricole was to be approached as a lender and also for advisory services. Mr Hartanto therefore claimed that a good part of the first Crédit Agricole meeting was spent discussing the details of this intended arrangement. This included whether Crédit Agricole could provide large loan facilities on the collateral of a single security. Mr Hartanto’s evidence was that both Mr Yeh and himself eventually agreed to use Yuanta to borrow the funds from Crédit Agricole because Yuanta was an existing customer of Crédit Agricole and would have had better access to the contemplated credit facilities.

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