High Court · Decided 3 June 2011

Walton International Group (Singapore) Pte Ltd and others v Yau Kwok Seng Winston and another

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[2011] SGHC 144Case no. Suit No 333 of 2008

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Tan Lee Meng J:
Introduction
[1] This case concerns a very bitter dispute between employers and two of their former key employees, one in Singapore and the other in Malaysia. According to the plaintiffs, this is a story of the defendants’ pride, revenge, greed and conspiracy. The defendants readily agreed that there was a conspiracy, but to them the conspirators were the plaintiffs themselves and some of their senior employees who sought to use them as scapegoats for the low morale of the plaintiffs’ staff and poor sales in Malaysia caused by mismanagement. The dispute spawned numerous causes of action, including solicitation of staff, unlawful interference with trade, spreading of malicious falsehoods, defamation and breach of the duty of confidence.
[2] A secret tape recording that revealed no secrets, statutory declarations allegedly sworn before a Commissioner for Oaths who was not present, astounding admissions by the plaintiffs’ top management and unexpected withdrawals of very serious allegations made in affidavits peppered a long trial that lasted more than 13 weeks. There were 55 witnesses, 16 volumes of affidavits of evidence-in-chief (“AEICs”) and 9,772 pages of documents in the Agreed Bundles. The evidence could not have been more contrasting. Whether a lunch that was crucial to the plaintiffs’ case on solicitation was a jolly and enjoyable occasion to celebrate a birthday or a secret tense gathering with threats made to harm the attendees was the subject of intense debate. Whether or not there was a birthday cake and a “happy birthday” song at the said lunch was also disputed. This led one counsel to accuse the other side’s witness of hallucinating at the lunch.
[3] The 1 to 4 plaintiffs are companies within the Walton group. The 1 plaintiff, Walton International Group (Singapore) Pte Ltd (“Walton Singapore”), and the 2 plaintiff, Walton International Group (M) Sdn Bhd (“Walton Malaysia”), market Walton’s landbanking products in Singapore and Malaysia respectively. The 3 plaintiff, Walton International Group (USA) Inc, markets Walton’s landbanking products in the USA. The 4 plaintiff, Walton International Group Inc, a Canadian company (“Walton Canada”), serves as the headquarters of the Walton group. The 5 plaintiff, Mr William Kevin Doherty (“Mr Doherty”), is the President and Chief Executive Officer of the Walton group.
[4] The 1 defendant, Mr Winston Yau Kwok Seng (“Mr Yau”), Walton Singapore’s former Executive Vice-President, Asia, was responsible for the operations of the Walton group in Asia before he resigned on 17 January 2008. He was paid around US$5 million per annum.
[5] The 2 defendant, Mr James Iseli (“Mr Iseli”), was Walton Malaysia’s Vice-President, Sales before he left that company on 5 May 2008.
Background
[6] The plaintiffs are in the business of landbanking. Their business involves the purchase of large tracts of strategically located agricultural or undeveloped land near or within the city limits of various North American cities in anticipation of their future development. The plaintiffs’ clients may purchase direct undivided interests in the land and become tenants in common of the entire tract of land with other purchasers. They may also purchase securities in the form of shares in companies or limited partnerships formed to purchase and hold the land. When urban development encroaches upon the said properties, the properties are sold, usually to a developer, and clients who have invested in the said properties receive a return on their investments.
[7] The plaintiffs’ sales and marketing operations in Asia are carried out principally from offices in Singapore, Malaysia and Hong Kong. Walton Singapore was incorporated in 1998 and it was formerly the headquarters for Asian operations. However, since 2008, each of the Walton subsidiaries in Asia has had its own Managing Director and administrative infrastructure.
[8] The plaintiffs recruit individuals with the requisite skills to build up and retain a clientele interested in their landbanking products. Their staff are provided with education and training with respect to the detailed characteristics and advantages of Walton’s products as investments. The plaintiffs’ ability to successfully market Walton’s products is thus largely dependent on the services and loyalty of their sales staff.
[9] Mr Yau, a former real estate agent, joined Walton Singapore as a junior landbanking consultant in May 1996. He rose quickly from the ranks. By 1998, he had become the Regional Sales Manager.
[10] In 2001, Mr Yau collaborated with a real estate company, Multimatch Properties Pte Ltd (“Multimatch”), which was helmed by his friend, Mr Dirk Foo. Multimatch, which was paid a fee for selling Walton’s products, became the primary source of Walton Singapore’s sales revenue. Mr Yau managed to persuade Mr Dirk Foo to wind up Multimatch and bring his experienced sales team, including Mr Iseli and Ms Sharon Loh Pui Pui (“Ms Loh”), to Walton Singapore.
[11] According to Mr Doherty, Mr Dirk Foo revolutionised the organisation of the Walton Singapore’s sales department by implementing a four-tiered structure with Division Managers at the top, followed by Group Managers, Team Managers and Consultants. While Consultants were paid a commission on their sales, Team Managers earned commissions on the sales of all the Consultants in their teams. Group Managers had an overriding commission on the sales made by all the Team Managers and Consultants in their group. Finally, Division Managers were entitled to a commission on their own sales and an override on commissions earned by all the members of their teams. At the material time, Walton Singapore had 5 Division Managers, 10 Group Managers, 100 Team Managers and between 300 to 400 Consultants.
[12] In August 2002, Mr Yau was appointed a director of Walton Singapore. He was also put in charge of Walton Hong Kong. When Walton Malaysia was incorporated in 2002, he was appointed its director, a post he retained until 2006.
[13] In 2003, Mr Yau became the Senior Vice-President of Asia-Pacific and Mr Dirk Foo was appointed the Vice-President, Sales.
[14] Apart from being the President of Operations in Walton Asia, Mr Yau was appointed a member of Walton Canada’s executive management team. In his AEIC, Mr Yau explained (at paras 31 – 33) his various roles:
[15] According to Mr Yau, he and his right-hand man, Mr Dirk Foo, who became the Executive Vice-President of Sales of Walton Asia in 2006, developed the plaintiffs’ Asian network and clientele over the years. He pointed out that from a nominal turnover in 1996, Walton Asia’s turnover reached CAD$200m in January 2008. He added that sales in Asia accounted for more than 50% of the worldwide sales revenue of the Walton group.
[17] The sale of Walton’s products through IFAs proved to be quite successful in Hong Kong but the strength of Walton Hong Kong’s retail sales staff was significantly pared down. As such, the thought of having more corporate sales through IFAs made some retail sales staff in Singapore and Malaysia uneasy about their future. Mr Doherty alleged that Mr Yau did not describe the benefits of the IFA channels to the retail staff and that was why this new channel of sales was seen as a threat to them. On the other hand, Mr Yau pointed out that the corporate and retail sales teams were after the pie.
[18] Apparently, the disquiet in the retail sales divisions in Singapore and Malaysia about increasing the profile of corporate sales may have been partly fuelled by the plaintiffs’ own policies. In February 2007, a new commission structure for corporate sales favoured corporate sales to such an extent that retail sales staff became unhappy. It did not help that at a company retreat at Scottsdale, Arizona (the “Scottsdale retreat”) from 30 April to 4 May 2007, a key expatriate in the Singapore office, Mr Glen Pickard (“Mr Pickard”), who was in charge of corporate sales, stated:
[19] The Canadian model involved corporate sales and required substantially less manpower than the retail sales model in Singapore and Malaysia. According to Mr Yau, Walton Canada had only around 40 personnel at the material time whereas Walton Singapore’s retail sales force had more than 400 sales staff during the corresponding period.
[20] Both Mr Yau and Mr Dirk Foo urged the plaintiffs to take steps to boost the morale of the retail sales staff. However, in 2007, Mr Dirk Foo, who was previously in charge of both retail and corporate sales, saw his corporate sales portfolio taken away from him. Mr Yau was unhappy with what he perceived to be a demotion of his right-hand man.
[21] Mr Doherty, who became disenchanted with Mr Dirk Foo’s performance, told Mr Yau in November 2007 that he would fly to Singapore to personally sack Mr Dirk Foo if the latter did not leave. Mr Dirk Foo agreed to resign in December 2007 and Mr Doherty praised him for his contributions to the company when his resignation was announced at “Walton Vision”, an event in Singapore on 18 January 2008.
[22] Mr Yau was rather shaken by the departure of Mr Dirk Foo, whom some regarded as the “champion” of retail sales. He claimed that the ousting of Mr Dirk Foo reinforced his belief that Mr Doherty intended to corporatise the Asian operations and implement the Canadian model of corporate sales. On 15 January 2008, he tendered his resignation and his employment ceased on 17 January 2008.
[23] Before leaving, Mr Yau sent the following farewell e-mail to his staff to exhort them to do their best for the company:
[24] Mr Doherty testified that Mr Yau’s e-mail was “awesome” and that the e-mail did not appear to have been drafted by someone bent on destroying the plaintiffs.
[25] Despite Mr Yau’s advice to reassure the retail sales staff, Mr Doherty focussed his attention on corporate sales at “Walton Vision” on 18 January 2008, at which the audience was primarily retail sales staff. It was announced that the retail and corporate departments of Walton Singapore would be merged and that Ms Loh had been promoted to Vice-President Sales in Walton Singapore.
[26] In February 2008, the retail and corporate sales departments of Walton Malaysia were merged. Mr Iseli was promoted to Vice-President, Sales of Walton Malaysia. According to him, after the merger, retail sales staff were told to bring in IFAs as clients and this indicated a shift to corporate sales.
[27] The plaintiffs asserted that Mr Yau, who was paid more than US$5m per annum, regretted his decision to leave his job and that the latter planned to return to the Walton group. Mr Doherty, who was obviously not minded to have Mr Yau back, informed the latter on 23 January 2008 that if he returned to the company, he would not be offered his old post or any senior executive position. The plaintiffs were convinced that this snub caused Mr Yau to lose face and the latter plotted to harm the plaintiffs by taking over the retail sales staff of Walton Singapore and Walton Malaysia to show Mr Doherty that he was indispensable. Mr Yau denied this allegation.
[28] Some two weeks after his resignation, Mr Yau met Walton Singapore’s five top Division Managers (the “Walton Singapore DMs”) at a lunch on 27 January 2008 and at a dinner on 29 January 2008. According to nearly all the attendees at the lunch, they gathered on 27 January 2008 to celebrate Mr Yau’s birthday. Apparently, Mr Yau paid for the lunch and there was a follow-up dinner two days later. At these meals, Mr Yau encouraged the DMs to work hard for Walton Singapore but the other things that were allegedly said by him at the lunch and dinner formed the basis of the plaintiffs’ claim that he solicited the Walton Singapore DMs to leave Walton Singapore and join him in a new business venture. It was not disputed that none of these DMs left to work with Mr Yau.
[29] In May 2008, five of Walton Singapore’s finance staff resigned for personal reasons. None of them were employed by Mr Yau. All the same, Walton Singapore claimed that Mr Yau had solicited them to resign. To Mr Yau, this claim was absolutely ludicrous.
[30] In the meantime, Walton Malaysia’s bosses claimed that they suspected that Mr Iseli, who had just been promoted to the position of Vice-President Sales in February 2008, and some of his associates were conspiring with Mr Yau to undermine the company’s interests. On 3 April 2008, Walton Malaysia’s then Managing Director, Mr Krishnan Murali (“Mr Murali”), e-mailed Walton Asia’s Chief Operating Officer, Mr Kent Britton (“Mr Britton”), stating that his staff had been solicited by Mr Iseli to leave the company. The plaintiffs hastily assembled a high-level team (the “Interborder team”) in early April 2008 to find out what was going on in Walton Malaysia.
[31] The Interborder team interviewed many of the persons named in Mr Murali’s e-mail, including Mr Iseli, and concluded that there was nothing untoward in Walton Malaysia. Mr Murali was demoted.
[32] In early May 2008, Mr Abdul Razak Ghani (“Mr Razak”), who was Mr Iseli’s boss, made up his mind that the latter had to go even though, by his own admission, he had no concrete evidence that the latter had acted against the company’s interest. Mr Iseli was offered a rather generous severance package but with strings attached. He would be paid his full remuneration for 9 months and half his remuneration for the following 9 months provided he agreed to assist the plaintiffs in their suit against Mr Yau. It was made clear to Mr Iseli that he would be sacked and sued if he did not accept the package. Mr Iseli, who believed that Mr Yau had not acted against the plaintiffs’ interests, stated that he could not testify against Mr Yau. On 5 May 2008, Mr Iseli’s employment was terminated. According to the plaintiffs, he resigned but Mr Iseli said that he did not do so. On the very next day, Walton Malaysia commenced proceedings against him in Malaysia.
[33] On 13 May 2008, the plaintiffs commenced the present proceedings against Mr Yau in Singapore. On the same day, the plaintiffs applied for an interim order (“the injunction application”) to restrain Mr Yau from, inter alia, soliciting its employees, unlawfully interfering with their trade, disclosing confidential information and defaming them. On 16 May 2008, Mr Yau gave an undertaking not to solicit the plaintiffs’ staff and on 29 May 2008, Mr Iseli gave a similar undertaking in Kuala Lumpur.
[34] On 20 October 2008, the plaintiffs’ injunction application was heard by Choo Han Teck J (“Choo J”). By then the application to restrain the solicitation of its staff was irrelevant because the period of restraint under Mr Yau’s contract had expired. After hearing the parties on the other aspects of their injunction application, Choo J dismissed the plaintiffs’ application on 3 November 2008.
[35] In due course, the claims against Mr Iseli in the Malaysian courts were incorporated into the Singapore proceedings.
[36] Walton Singapore and Walton Malaysia proceeded to sack or suspend many of their staff. According to the plaintiffs, the staff had been sacked because they were disloyal or had performed poorly. However, Mr Yau and Mr Iseli asserted that they had been sacked for refusing to lie that they had been solicited to leave the plaintiffs. What is clear is that many staff who had refused to file affidavits on behalf of the plaintiffs or who had filed affidavits in favour of the defendants were sacked. On the other hand, many staff who had initially said that there had been nothing untoward in their interaction with Mr Yau and Mr Iseli but had subsequently changed their minds and claimed that they had been solicited to leave the plaintiffs retained their jobs or had their suspension from work removed. Furthermore, all the Walton Singapore DMs who contradicted or retracted much of what they had stated in their AEICs in support of the plaintiffs’ case during the trial have since left the company for reasons which were not disclosed to the court.
Summary of the Plaintiffs’ Claims against the Defendants
[37] The plaintiffs’ case is that Mr Yau resigned when Mr Doherty laid the blame on him for causing the Walton group to lose money and that he regretted his decision shortly thereafter. It was alleged that Mr Yau wanted to set up a competing business and pull retail sales staff away from Walton Singapore and Walton Malaysia in order to cripple these companies so that he could negotiate with Mr Doherty from a position of strength. The plaintiffs asserted that Mr Yau spread false malicious rumours to scare their retail sales staff into joining him and that he enlisted the help of Mr Iseli and Ms Loh for this purpose. According to the plaintiffs, Mr Yau and Mr Iseli were cunning and clever and their solicitation was indirect in the form of suggestions, inferences and implications. It was averred that while they failed in Singapore, they succeeded in Malaysia, if only because Walton Malaysia’s profits dipped massively in 2008 while Walton Singapore’s profits soared in that year.
[38] In their opening statement, the plaintiffs summarised their claims against Mr Yau as follows:
[39] As for the claims against Mr Iseli, these were summarised in the plaintiffs’ opening statement as follows:
[40] As for the plaintiffs’ claim against Mr Yau and Mr Iseli jointly, this relates to a conspiracy to injure by using unlawful means or lawful means with a predominant intention to injure them.
The Key Witnesses
[41] Among the plaintiffs’ key witnesses were the following:
[42] Among the witnesses who testified for Mr Yau and Mr Iseli were the following:
[43] Three expert witnesses testified on the damage allegedly suffered by the plaintiffs. Mr Tam Chee Chong (“Mr Tam”), the Executive Director of Deloitte & Touche Financial Advisory Services Pte Ltd (“Deloitte”), was the plaintiffs’ expert witness while the defendants’ expert witnesses were Mr Roger Tay Puay Cheng (“Mr Tay”), the Executive Director of KPMG Advisory Services Pte Ltd, and Dr Chan Siew Pang (“Dr Chan”), a senior lecturer at La Trobe University in Australia.
The Alleged Solicitation in Singapore
[44] The plaintiffs claimed that almost immediately after his resignation, Mr Yau, with the assistance of Mr Iseli, met staff of Walton Singapore and Walton Malaysia, either individually or in groups, to solicit them to join a rival business which he had intended to set up. They pointed out that this was in breach of the defendants’ employment contracts, which contained a non-solicitation clause. In Mr Yau’s case, the non-solicitation period was 9 months after leaving the company. In Mr Iseli’s contract, the non-solicitation period was one year.
[45] In Hellmann Insurance Brokers v Peterson [2003] NSWSC 242, Campbell J considered the meaning of “solicitation” in the context of a clause prohibiting the solicitation of clients in the following helpful terms (at [11] – [12]):
[46] Campbell J’s view, which is relevant to the issue of non-solicitation of staff, was endorsed by Belinda Ang J in Tan Wee Fong and others v Denieru Tatsu F & B Holdings (S) Pte Ltd [2010] 2 SLR 298.
[47] The plaintiffs’ case against the defendants on solicitation in Singapore relates to:
[48] The plaintiffs’ counsel, Ms Indranee Rajah SC (“Ms Rajah”), tried her best to build up a case on solicitation against the defendants. However, her determined effort was completely undermined by many of the plaintiffs’ witnesses, including those who occupied top management positions, who eroded the foundation of their case on solicitation in Singapore.
Resignation of the five finance staff
[49] The plaintiffs’ allegation that Mr Yau solicited five of Walton Singapore’s finance staff to resign in May 2008 (“the resignations”) will be considered first, if only to show how the plaintiffs’ own witnesses undermined Ms Rajah’s efforts and demolished their case without any assistance from the defendants. This allegation was pleaded in the Statement of Claim (at para 51):
The five staff who resigned were Ms Grace Lim, Ms Liu Zhirui, Ms Tan Li Ching, Ms Loh Yee Koon and Ms Gian Swee Ying.
[50] Mr Foo, Walton Singapore’s Managing Director at the material time, demolished his company’s case on the solicitation of the five staff by testifying that the resignations had nothing to do with solicitation by Mr Yau. The relevant part of his damning evidence was testified as follows:
[51] The five staff testified that they resigned for personal reasons. Ms Grace Lim said that she was unhappy that her department had not been as well treated as other departments. Ms Liu Zhirui stated that she resigned to pursue a full-time accounting degree. Ms Tan Li Ching testified that she resigned because she had not been promoted. Ms Loh Yee Koon revealed that she resigned in order to babysit her nephews. Finally, Ms Gian Swee Ying made it clear that she left Walton Singapore because of stress.
[52] The evidence of the five staff was not challenged during cross-examination. In fact, three of them were cross-examined for only two minutes while cross-examination of the remaining two staff took not more than 12 minutes each. None of them was asked whether their resignations had anything to do with Mr Yau’s alleged solicitation.
[53] Why Walton Singapore instructed its solicitors that the resignations evidenced Mr Yau’s solicitation of its staff when its then Managing Director knew all along that this was untrue cannot be fathomed and this reflected very badly on the plaintiffs. I thus dismiss the plaintiffs’ allegation that Mr Yau had solicited the five finance staff to leave the company.
The lunch and dinner
[54] The plaintiffs alleged that at a lunch at Lei Garden Restaurant on 27 January 2008 (“the lunch”) and at a dinner at Tung Lok Seafood Restaurant on 29 January 2008 (“the dinner”), Mr Yau, with the assistance of Mr Iseli and Ms Loh, attempted to solicit Walton Singapore’s five DMs to join a new marketing company that he intended to set up.
[55] The five DMs who were present at the lunch and dinner were ex-DM Chong, DM Yao, DM Ann, DM Ong and Ms Lusi. Ex-DM Chong was sacked on 23 December 2008 for filing an AEIC in support of Mr Yau. As for the other four DMs, Ms Lusi climbed the corporate ladder rather quickly after the lunch and dinner and is now Walton Singapore’s Chief Operating Officer. She was thus the boss of DM Yao, DM Ann and DM Ong when they testified at the trial. However, to their credit, DM Yao, DM Ann and DM Ong did not allow this fact to affect their testimony and they boldly contradicted Ms Lusi on numerous occasions on quite a number of important issues.
[56] Although the plaintiffs portrayed the lunch as having been organised by Ms Loh to enable Mr Yau to solicit the DMs, it appeared that the lunch, which was intended to celebrate Mr Yau’s birthday, had been a rather jolly affair. DM Ong described the lunch as a “ha ha hee hee” event and DM Yao agreed that it was a “happy” occasion. There was ample evidence that there was a birthday cake and a “happy birthday” song for Mr Yau.
[57] During the lunch, Mr Yau, who was asked about his reasons for resigning, stated his reasons and encouraged the DMs to work hard for Walton Singapore. Ms Loh testified as follows:
[58] Ex-DM Chong also referred to Mr Yau’s encouragement. She stated in her AEIC (at para 15):
[59] Two of the plaintiffs’ witnesses also testified that Mr Yau encouraged them to work hard for Walton Singapore. DM Yao said that Mr Yau’s message to them was “[w]hatever happened, ... we should always not jeopardise the sales in Walton”. In his AEIC, he stated (at para 77):
[60] DM Ong testified that Mr Yau told them that “Walton was really his baby, and he wanted to see its success continue after his departure”.
[61] The plaintiffs’ CEO, Mr Doherty, agreed that a person would not have encouraged Walton Singapore’s DMs to work hard if he had intended to solicit them. The following answer that he gave during cross-examination was rather telling:
[62] In the face of the emphatic denial by Ms Loh and ex-DM Chong that Mr Yau had solicited the DMs at the lunch and dinner, the plaintiffs might initially have been pleased that four of the DMs at the lunch, namely DM Ann, DM Yao, DM Ong and Ms Lusi had suggested a contrary position in their AEICs. However, when cross-examined, DM Ann, DM Yao and DM Ong did not support the company’s case on solicitation and they contradicted much of what Ms Lusi’s evidence on solicitation at the lunch and dinner.
[63] For a start, although DM Ann had stated in his AEIC (at para 57) that Mr Yau “invited us to be part of this new business”, he testified that the latter had merely made vague and casual remarks about the future and had nothing specific to offer them.
[64] DM Ong, who had suggested in her AEIC (at paras 51- 52) that Mr Yau had wanted to know if the DMs were going to join him, clarified during cross-examination that the latter had not asked her to leave Walton Singapore to join him. As for her statement in her AEIC that she had sent Mr Yau a text message that she was not thinking of leaving Walton Singapore, she agreed that this was not her response to the latter’s invitation to join his new business. She testified as follows:
[65] When re-examined, DM Ong said that she had told Mr Yau that she was happy “regardless of the invitation” but when asked to elaborate, she made the following vague statement:
[66] In my view, the above statement by DM Ong during re-examination did not undermine her clear evidence during cross-examination that she had not been solicited by Mr Yau to leave Walton Singapore.
[67] As for DM Yao, he had claimed in his AEIC (at para 75):
However, when cross-examined, DM Yao agreed that Mr Yau did not ask anyone to leave Walton Singapore during the lunch. Furthermore, when he was referred to DM Ann’s testimony, DM Yao reiterated that Mr Yau did not solicit at the lunch and testified as follows:
[68] DM Yao also clarified the position regarding his phone call to Mr Yau after the dinner as follows:
[69] In their closing submissions, the plaintiffs contended that their witnesses had testified that they had not been solicited because they understood “solicitation” in the context of an express offer. I believe that if their DMs had thought that they had been impliedly solicited, they would have said so. After all, the cross-examination of their DMs was not limited to express offers and they were asked about “attempts to solicit” as well.
Ms Lusi’s evidence
[70] As the plaintiffs’ case on solicitation at the lunch and dinner was not supported by four of the five DMs who were present at these functions, their case hinged primarily on the evidence of Ms Lusi, who was quite determined to paint a sinister picture of the lunch. Unlike the others who attended the lunch, she said that she could not remember that there had been a birthday cake and a “happy birthday” song for Mr Yau, whose counsel, Mr Tan Chee Meng SC (“Mr Tan”), suggested that she must have been hallucinating at the lunch, a remark she understandably resented.
[71] Unlike other DMs, who thought that the lunch was a rather jolly occasion, Ms Lusi said that it was a “tense” and “secret” lunch. Her evidence was contradicted by her subordinates. DM Ong testified that no one told her to keep the lunch a secret and that it was a “very light-hearted” event, at which they even took photographs. She added that there was nothing “sinister” about the dinner. DM Yao also testified that there was nothing secretive about the occasion, and added that the lunch agenda was “totally honourable”. He also testified that there was “no special agenda” for the dinner.
[72] Ms Lusi made numerous allegations with respect to what transpired at the lunch and dinner. The first was that Mr Yau had asked the DMs “who’s in, who’s out” as he wanted to know who was going to leave Walton Singapore to join his new company. Mr Yau did ask “who’s in, who’s out” but, apparently, this was in the context of a joke. Ex-DM Chong explained in her AEIC (at para 24):
[73] Ms Loh corroborated ex-DM Chong’s explanation of the context in which the remark “who’s in, who’s out” was made by Mr Yau. The plaintiffs’ witness, DM Yao, also corroborated ex-DM Chong’s version of events as he testified as follows:
[74] It is pertinent to note that DM Yao described Mr Yau’s “who’s in, who’s out” remark as a joke on a number of other occasions during cross-examination.
[75] Although DM Ong could not remember much about the incident, she recalled the joke that ex-DM Chong had made about investing in Mr Yau’s company.
[76] I find that Mr Yau’s “who’s in, who’s out” remark was made in the context of a joke and that this remark did not advance the plaintiffs’ case on solicitation in any way.
[77] Ms Lusi’s next allegation was that Mr Yau had said that he wanted the Walton Singapore’s retail sales staff to join him so that Mr Doherty will be forced to ask him for help and negotiate an agreement with him. She stated in her AEIC (at para 90):
[78] In her AEIC (at paras 55-57), DM Ong appeared to have corroborated Ms Lusi’s allegation that Mr Yau stated that he wanted to recruit Walton Singapore’s sales staff to force Mr Doherty to ask for his help. However, she quickly withdrew these paragraphs from her AEIC when she was cross-examined and testified that she could not remember whether she or anyone else had asked Mr Yau about Mr Doherty’s willingness to negotiate with Mr Yau. More astonishingly, she added that it was quite possible that no one had asked Mr Yau this question and that this matter could have been the subject of a private discussion between the Walton DMs themselves. How then did such a serious allegation against Mr Yau creep into DM Ong’s AEIC? DM Ong said that she had been told that Ms Lusi remembered the events narrated in her (DM Ong’s) AEIC. It was rather disturbing that her AEIC had been tailored to fit Ms Lusi’s accusation against Mr Yau. Although DM Ong had not been forced to sign her AEIC, she testified that she had “of course” been “a little concerned” that if she refused to file an affidavit for the plaintiffs, her employment contract might be terminated. I find that the allegation that Mr Yau had said that he wanted all the Walton Singapore sales staff to join him so that he could negotiate with Mr Doherty was not proven.
[79] Ms Lusi next alleged that Mr Yau threatened the DMs that he would harm their families if they revealed his plans. However, Ms Loh said that this allegation was nonsensical because given the close professional and social relationship that Mr Yau had with them, he would not have threatened them or made any such offensive remark.
[80] The plaintiffs’ own witnesses contradicted Ms Lusi’s allegation that Mr Yau had threatened them. DM Yao testified that Mr Yau did not make such a threat while DM Ong testified that she could not recall an incident like this. When re-examined, DM Yao explained what Mr Yau had meant by keeping things “confidential” in a manner which was totally inconsistent with Ms Lusi’s evidence:
[81] I thus dismiss the allegation that Mr Yau had threatened to harm the families of the DMs at the lunch or dinner.
Mr Britton’s evidence on Ms Lusi’s allegations
[82] Mr Britton’s evidence on Ms Lusi’s allegations (the “allegations”) against Mr Yau also undermined the plaintiffs’ case on solicitation. When cross-examined, Mr Britton claimed that Ms Lusi had told him in April 2008 that at a secret lunch meeting, Mr Yau had said that:
[83] Remarkably, none of these very serious allegations by Ms Lusi were mentioned in Mr Britton’s AEIC. Apart from this, there were far too many other flaws in Mr Britton’s evidence. To begin with, he claimed that he must have informed the plaintiffs’ solicitors about the allegations as early as April 2008. If this is true, it is inexplicable that the allegations, which featured so prominently in the plaintiffs’ case on solicitation, were not pleaded when legal proceedings were commenced against Mr Yau in the following month in May 2008. In fact, the allegations did not surface until the Statement of Claim was amended more than 6 months later! Mr Yau’s counsel, Mr Tan, submitted that the allegations appeared in the pleadings so late in the day because the plaintiffs needed time to fabricate their evidence.
[84] When questioned about the delayed appearance of the allegations in the plaintiffs’ pleadings, Mr Britton replied most unconvincingly as follows:
Mr Britton finally admitted that he might not have informed his solicitors about the allegations in April 2008. This raises another question as to why he did not do so as these allegations were crucial to the plaintiffs’ case on solicitation in Singapore.
[85] Mr Britton’s credibility was further dented by his claim in his AEIC and during cross-examination that he had informed Mr Doherty, Mr Knight, Mr Baukol and Mr Foo about the allegations. Mr Doherty testified that he could not recall whether he had been told about Mr Yau’s solicitation at the said lunch and dinner while Mr Baukol testified that he did not know about Ms Lusi’s conversation with Mr Britton about the allegations. As for Mr Knight, Mr Britton subsequently conceded that he might not have informed the former about the allegations. Finally, Mr Foo testified that Mr Britton did not tell him about the allegations and added that none of his DMs had brought up the matter of solicitation with him in a way “where they could adduce evidence” of this.
[86] It is also noteworthy that the allegations were not mentioned in the plaintiffs’ pleadings in the Malaysian proceedings and in Mr Britton’s AEIC filed for those proceedings on 28 May 2008. When asked why he did not inform the Malaysian court about the allegations, Mr Britton was at a total loss and said that he could not give an explanation.
[87] Yet another inconsistency about the allegations is that Mr Knight stated in his AEIC (at para 14) that Ms Lusi’s allegations in April 2008 were “general” in nature. However, when cross-examined, he agreed that if Ms Lusi had indeed spoken to Mr Britton in April 2008, she had outlined very clear instances of solicitation. Furthermore, Mr Knight claimed that when the action was commenced, Ms Lusi told Mr Britton that she was not comfortable about filing an AEIC in support of the plaintiffs’ case. However, she testified that she had been prepared to file an affidavit all along but no one had asked her to do so until much later. Mr Tan suggested that Ms Lusi’s version is closer to the truth as the plaintiffs’ former solicitors, Baker & McKenzie (“B & M”), had issued a bill for time spent on preparing an affidavit by one “Luci” in May 2008, long before she filed her AEIC for the present proceedings. He suggested that Ms Lusi’s original AEIC was not filed as it was not “meaty” enough to nail Mr Yau. Ms Lusi, who pointed out that she is not “Luci”, conceded that there was no one called “Luci” in Walton Singapore. Obviously, B & M must have mis-spelt her name in its bill but Ms Lusi denied having met any lawyer from that law firm at the material time.
[88] Finally, if Ms Lusi had really told Mr Britton about a forthcoming walkout by administrative staff, this did not materialise. The company tried to blame Mr Yau for the resignations of five of their finance staff but as has been mentioned, their boss, Mr Foo, conceded that Mr Yau had nothing to do with their resignations. Besides, this was hardly the walk-out Mr Britton had in mind. Only Ms Lusi continued to doggedly insist without any basis whatsoever that Mr Yau had a hand in the said resignations despite having been told of Mr Foo’s evidence, a stand which eroded her credibility.
[89] After considering all the circumstances, I do not believe that Ms Lusi had spoken to Mr Britton in April 2008 about the allegations against Mr Yau regarding the alleged solicitation of Walton Singapore’s DMs at the lunch and dinner. The non-existent conversation undermined the plaintiffs’ case on solicitation in Singapore.
Mr Yau had no concrete plans in January 2008
[90] When considering whether or not Mr Yau had solicited Walton Singapore’s DMs at the lunch and dinner, it cannot be overlooked that he had just left the company and had no concrete plans to offer the Walton DMs. Mr Baukol testified that he was informed by DM Ong, DM Yao and DM Ang about Mr Yau’s lack of concrete plans during investigations in June 2008 and that at the lunch and dinner, Mr Yau had merely mentioned his interest in acquiring Fly Entertainment, a comparatively small local artiste management company that represented Asian actors and actresses in the local and regional entertainment scene. This is a business far removed from landbanking. If Mr Yau had wanted to recruit staff for Fly Entertainment, he would not be looking at the plaintiffs’ employees, who had no expertise in artiste management.
[91] In their closing submissions, the plaintiffs claimed that Mr Yau intended to involve their DMs not in Fly Entertainment but in other aspects of his plans. They asserted that his plan was to use a company, Capital Alliance (Group) (“CAG”), which was owned by his friend, Mr Richard Lim Cheong Boon (“Mr Lim”), to market the landbanking products of the plaintiffs’ rival, TSI. They added that Mr Yau had intended to use CAG as his own business vehicle after his short restraint period expired. Whatever may have been Mr Yau’s subsequent plans, we are here concerned with whether or not he had solicited the DMs in January 2008 at the lunch and dinner. There was no evidence that Mr Yau had any plans regarding landbanking in January 2008. Even Ms Lusi agreed in her AEIC (at para 42) that Mr Yau “did not reveal much information about his new marketing company” and that he had been “quite vague” about his plans. When cross-examined, DM Ann stated:
[92] It is also worth noting that Walton Singapore’s then Managing Director, Mr Foo, testified that he had not heard that Mr Yau was entering the landbanking business at the material time. When cross-examined about Mr Yau’s proposed business venture, he stated as follows:
[93] Despite testifying that he had only heard that Mr Yau was in the coal mining business, Mr Foo claimed in his AEIC filed on 23 July 2008 that Mr Yau had announced at the dinner that he (Mr Yau) would be “starting a company essentially selling similar to those offered by the Walton group”. When cross-examined on why he could make such an assertion when he claimed to have heard nothing about Mr Yau being in the landbanking business, Mr Foo replied unconvincingly as follows:
[94] When questioned further, Mr Foo’s replies made it obvious that he had no basis for saying that Mr Yau was starting a landbanking business. His replies were as follows:
[95] The plaintiffs’ case on Mr Yau’s alleged solicitation of their staff is also incredible because Mr Britton testified that Ms Lusi told him that Mr Yau “was concerned for everybody and as a result of that he wanted to create an opportunity to save everybody”. One Ms Norzita binti Alpi, a Senior Team Manager of Walton Malaysia, also made a similar allegation about Mr Yau’s desire to save all of Walton Malaysia’s retail sales staff but she abandoned this allegation during cross-examination and admitted that she had fabricated this evidence to advance the plaintiffs’ case.
[96] Mr Baukol conceded that it would be very “challenging” for Mr Yau to be able to guarantee the DMs their existing remuneration at Walton Singapore. There was no evidence that Mr Yau had jobs to offer to the hundreds of retail sales staff in Walton Singapore and Walton Malaysia. Mr Baukol clutched at straws by suggesting that people could join Mr Yau out of loyalty. Mr Yau’s counsel, Mr Tan, submitted that it was preposterous to think that his client could solicit the highly paid DMs with nothing more than friendship. As Ms Loh aptly put it, only Walton Singapore could pay her more than a million dollars every year and there was no reason for her to bite the hand that fed her.
[97] As Mr Yau lacked concrete plans in January 2008 and did not say that he was going into the landbanking business at the lunch and dinner, the plaintiffs ought to have realised that their case on solicitation at the lunch and dinner, whether express or implied, did not rest on solid ground.
Conclusion on solicitation in Singapore
[98] The plaintiffs’ case on solicitation in Singapore rested on the alleged walkout by the five finance staff in May 2008 and on what had been allegedly said by Mr Yau at the lunch and dinner in January 2008. Bearing in mind that the period of non-solicitation of staff and non-competition was rather short, I had no doubt that Mr Yau might have had some long-term plans that were at a rudimentary stage. However, it was quite clear to me that he had nothing to do with the resignation of the five finance staff and that he did not solicit the DMs at the lunch and dinner in January 2008 because he then had no concrete business plans to offer them.
[99] If Mr Yau had intended to solicit the DMs at the lunch or dinner, it was strange that the plaintiffs furnished no evidence of any follow-up action by him to ensure the success of his solicitation. The plaintiffs conveniently asserted that Mr Yau’s efforts at soliciting the Singapore staff failed because of their remedial action but the lack of proof of any follow-up action by Mr Yau after January 2008 other than the ridiculously absurd claim that he orchestrated the resignation of the five finance staff undermined their case.
[100] Ultimately, the plaintiffs’ case on solicitation in Singapore could not succeed when four out of five of their top Singapore DMs saw a birthday cake for Mr Yau at the lunch when their main witness, Ms Lusi, did not, heard things said at the lunch and dinner that Ms Lusi did not, and did not hear much of what Ms Lusi alone claimed to have heard at the lunch and dinner. Interestingly, DM Ong and DM Yao testified that they were concerned that if they did not support the company’s case against Mr Yau, their future in Walton Singapore might be affected. For unexplained reasons, the three Walton DMs who had contradicted the extravagant claims of their boss, Ms Lusi, left Walton Singapore before the trial was completed. When cross-examined, Mr Foo claimed that he did not know why DM Yao, DM Ong and DM Ann had left the company even though he must have been concerned that three of his top DMs were leaving the company and would have looked into the matter. The court was thus left in the dark as to why Walton Singapore’s top DMs had to resign before the completion of the trial.
Alleged Solicitation in Malaysia
[102] The plaintiffs’ complaints about solicitation by the defendants in Malaysia centred around events that occurred before Mr Iseli was sacked on 5 May 2008. Their case was severely undermined when Walton Malaysia’s Chief Operating Officer and former Managing Director, Mr Razak, who was in the thick of investigations into Mr Iseli’s conduct, shockingly conceded during cross-examination that he had no “concrete” evidence of any wrongdoing by Mr Iseli or Mr Yau when Mr Iseli was sacked on 5 May 2008. The relevant part of the proceedings is as follows:
[103] When re-examined, Mr Razak explained what he meant by “concrete evidence” as follows:
[104] As the court is only concerned with the civil standard of proof, notions of “concreteness” of evidence may be misleading. However, when cross-examined, Mr Razak also did not deny that he had “no evidence” at all against Mr Iseli on 5 May 2008. Furthermore, he testified that when he decided to sack Iseli on 2 May 2008, the only “clear” offer of solicitation was an implied offer made by the defendants to Ms Linnet Tan. The relevant part of the proceedings is as follows:
[105] As Mr Razak testified that there were no express offers and the only clear implied offer by the defendants to his staff was that made to Ms Linnet Tan, it follows that all other alleged instances of solicitation were not “clear” instances of implied offers. In view of this, why the plaintiffs summoned so many of their Malaysian staff to testify on these unclear instances of implied solicitation cannot be readily understood. Regretfully, many of them undermined the work of the plaintiffs’ counsel, Ms Rajah, because their story-lines wilted during cross-examination.
[106] The plaintiffs’ most senior legal staff in Singapore, Mr Knight, was absolutely flabbergasted by Mr Razak’s evidence. When cross-examined on Mr Razak’s testimony on the evidence against Mr Yau and Mr Iseli that the plaintiffs had in their hands on 5 May 2008, his candid reply was “Boy, I wish I didn’t know Razak if I have to answer that. I don’t know.”
[107] In regard to solicitation in Malaysia before Mr Iseli was sacked, the plaintiffs focussed on the following three events:
The TSI presentation
[108] According to the defendants, the idea of a presentation by TSI was mooted at a lunch on 28 March 2008 when Mr Yau, who was having a lunch in Kuala Lumpur with Mr Huggins, invited Mr Iseli to join them. Mr Iseli explained that he had already arranged a lunch with a number of Walton Malaysia’s staff and they all conveniently joined Mr Yau for a free meal. The Walton Malaysia retail sales staff were interested in TSI’s products and asked a number of questions. Mr Huggins, who was then on vacation with his wife and daughter, offered to do a presentation on his company for them in the following month. Understandably, the plaintiffs’ counsel, Ms Rajah, submitted that there was more than meets the eye but the fact remains that there was no reference to this lunch in the pleadings. This was not surprising as the plaintiffs’ witnesses did not assert that there was any solicitation at the lunch with Mr Huggins. Indeed, Walton Malaysia’s witness, Ms Shirley Wong, testified that nothing happened during the lunch that was worth remembering and that was why she did not mention the lunch with Mr Huggins in her AEIC.
[109] Walton Malaysia’s employees often attended product presentations by rival companies to acquaint themselves with the competition. Why then was there so much fuss over the TSI presentation? Mr Razak admitted that at the material time, he was concerned that so many of his staff attended the presentation because his job would be on the line if many of them decided to leave Walton Malaysia. He testified as follows:
[110] It was rather telling that Mr Razak revealed that none of his staff had mentioned in their initial statements to the company that they had been solicited at the TSI presentation to leave Walton Malaysia. It was Walton Malaysia’s top brass who had suggested to them that they should state in their subsequent statements to the company that they had an “impression” that they had been solicited at the said presentation. Mr Razak unabashedly accepted that it was possible that the inclusion of a paragraph about the impression of solicitation at the TSI presentation in the subsequent statements of his staff was intended to “create a motive for [Mr Yau]”.
[111] What was disturbing was that after many of Walton Malaysia’s employees had been persuaded to say in their subsequent statements that they had an “impression” that they had been impliedly solicited at the TSI presentation, Mr Razak took these unsworn statements to a Commissioner for Oaths who was not present when these statements were signed but was nonetheless prepared to say that he (the Commissioner) witnessed the signing of the statements. Mr Razak conceded that the surreptitious conversion of the employees’ subsequent statements to statutory declarations had serious implications for the staff when he testified as follows:
[112] None of the plaintiffs’ witnesses could satisfactorily explain why they had an “impression” that they had been impliedly solicited at the TSI presentation. In fact, many of them stated that both Mr Yau and Mr Iseli had told them at the said presentation that it was not a recruitment exercise. Mr Iseli explained that as there were so many Walton Malaysia retail sales staff at the presentation, it was best to make it clear that recruitment of staff for TSI was not on the agenda. It is important to note that nothing was stated at the presentation about what TSI paid its staff, career prospects in TSI or when TSI intended to enter the Malaysian market. Most importantly, there was no evidence whatsoever of any follow-up action by TSI to find out whether anyone from Walton Malaysia was interested in joining that company.
[113] Most of the plaintiffs’ witnesses who testified on the TSI presentation were unconvincing witnesses who gave me the distinct impression that they merely wanted to toe their company’s line and leave the witness box as soon as possible. For instance, Ms Norzita, who admitted that she had been concerned that anyone perceived as not cooperating with Walton Malaysia could be sacked, agreed that the TSI presentation was not different from other product presentations that she had previously attended. She admitted that she had attended the TSI presentation because she wanted to learn more about TSI’s landbanking products and added that she had the same “feeling” of being solicited when she attended previous product presentations by the plaintiffs’ competitors. Surely, such evidence could not advance the plaintiffs’ case. More injurious to her credibility was her damning admission that she had fabricated evidence that Mr Yau had told her that he had wanted to set up a company to take them all in just in case they were thrown out by Walton Malaysia. I do not believe that she had been impliedly solicited.
[114] Ms Geethadevi Shanmugam (“Ms Geethadevi”), Walton Malaysia’s Group Manager, who also claimed to have been “impliedly” solicited, testified that her fear of Walton Malaysia’s corporatisation could have induced her to leave Walton. However, she readily admitted that going to a new company, such as TSI, of which she knew nothing about, was even more terrifying than Walton’s alleged corporatisation. She was not a credible witness and I do not believe that she had been impliedly solicited.
[115] Walton Malaysia’s Group Manager, Mr Nicholas Ong (“Mr Ong”), who claimed that he had been impliedly solicited on two occasions, was another unreliable witness. The first occasion concerned a meeting at the Crowne Plaza Hotel in February 2008 and the second occasion was at the TSI presentation. Mr Ong admitted that he might have tailored his evidence by claiming that he had the impression that he was being solicited at an earlier meeting at the Crowne Plaza Hotel in February 2008. He testified as follows:
[116] As for the TSI presentation, Mr Ong finally admitted that he could not have had the impression that he was being recruited at the TSI presentation and that his earlier evidence that the said presentation was a recruitment exercise was false. When re-examined by Ms Rajah as to why he had admitted to making a false statement on solicitation, Mr Ong’s answer, which is as follows, could not but damage his credibility:
One might well ask whether Mr Ong had also agreed to say whatever his bosses at Walton wanted to hear when he was questioned so as to “get it over and done with as soon as possible”.
[117] Mr Yau’s counsel, Mr Tan, rightly pointed out that if his client had intended to solicit Walton Malaysia’s retail sales staff to join TSI, he would also have arranged a TSI presentation in Singapore, where his client had much more influence as he was based in Singapore. It was not disputed that there was no TSI presentation in Singapore.
[118] After taking all the circumstances into account, I find that the plaintiffs’ allegation that their Malaysian staff had been impliedly solicited at the TSI product presentation was not proven.
Implied solicitation of Ms Linnet Tan
[119] The alleged solicitation of Ms Linnet Tan was one of the main planks of the plaintiffs’ case on solicitation in Malaysia. Surprisingly, this was also an implied solicitation and all that Ms Linnet Tan could say was that she “felt” that the defendants were soliciting her to move with her retail sales team to their new business venture.
[120] Ms Linnet Tan was one of the staff interviewed by the Interborder investigation team in early April 2008. She gave no indication then that there was anything untoward at Walton Malaysia. However, Mr Foo, who was a member of the Interborder team, claimed that Ms Linnet Tan had told him that Mr Iseli had approached various sales staff and conducted “meetings, here, there and everywhere”. However, he could not tell the court anything about what he had heard from Ms Linnet Tan. As such, his evidence on solicitation in Malaysia cannot be taken seriously.
[121] Much emphasis was placed by the plaintiffs on an e-mail that Ms Linnet Tan sent to Mr Razak on 29 April 2008. It was as follows:
[122] Mr Yau contradicted Ms Linnet Tan’s version of events. He explained that she had been asking Mr Iseli about the reasons for his resignation and as he was going to be in Kuala Lumpur on 20 April 2008, Mr Iseli suggested that she should have lunch with him to discuss the reasons for his resignation. In his AEIC, Mr Yau explained that when Ms Linnet Tan asked him whether he was going into landbanking, he said that he had rejected offers of a job with two Canadian landbanking companies but she continued to ask about the commission structure of these other companies. He added (at para 158):
[123] Ms Linnet Tan’s version of the discussions at the lunch on 20 April 2008 had far too many flaws. Mr Yau’s counsel, Mr Tan, rightly pointed out that if his client had planned to solicit staff from Singapore and Malaysia by offering them an improved commission structure, it was strange that Ms Linnet Tan was the only one who had been informed about the commission structure. Although Mr Yau was much closer to Walton Singapore’s retail sales staff, none of plaintiffs’ Singapore witnesses had mentioned a commission structure of the type allegedly revealed to Ms Linnet Tan. Mr Tan added that Mr Yau would not have singled her out as the only one to talk to about TSI’s commission structure as he would not have known whether she was on his side, and especially so since she claimed that she had made her pro-Walton stand quite evident to others from the very start. Furthermore, if Mr Yau had furnished her with details of TSI’s commission structure, she would not have had to try so hard in her subsequent e-mails to him after the lunch on 20 April 2008, which will be discussed below, to get more details on the very topics that had allegedly already been discussed in great detail at the said lunch. Mr Iseli, who was present at the lunch, stated in his AEIC (at para 131) that the conversation at the lunch was clearly about Mr Yau’s own employment opportunities and that he could not recall an offer having been made by Mr Yau to Ms Linnet Tan.
[124] Another point worth noting was that Mr Baukol claimed that when he had dinner with Ms Linnet Tan on 22 May 2008, the latter told him about the contents of her e-mail to Mr Razak. If Mr Baukol knew then that Mr Yau was setting up a rival landbanking company, a question arises as to why the plaintiffs did not rush to the courts to enforce the non-competition clause in his employment contract. After all, the plaintiffs moved swiftly to obtain an injunction against Mr Yau with respect to solicitation of its staff and Mr Baukol agreed that setting up a landbanking company was, from the plaintiffs’ point of view, a more serious matter than general solicitation of its staff. The fact that no steps were taken to obtain an injunction against the setting up of Mr Yau’s alleged competing business could only mean that even the plaintiffs themselves did not take Ms Linnet Tan’s allegation that Mr Yau was setting up a rival landbanking business very seriously.
[125] The plaintiffs also claimed that Ms Linnet Tan was impliedly solicited during an exchange of e-mails with Mr Yau. On 22 April 2008, she e-mailed Mr Yau as follows:
[126] On the same day, Mr Yau replied to her as follows:
[127] When cross-examined, Walton Malaysia’s Mr Razak admitted that no express offer had been made to Ms Linnet Tan in the said emails. What was quite troubling was that she did not disclose to the court another e-mail that she had sent to Mr Yau on 23 April 2008 until after she had given her testimony and returned to Kuala Lumpur. In this important e-mail to Mr Yau, she stated as follows:
[128] The undisclosed e-mail throws a different light on the exchange of e-mails between Ms Linnet Tan and Mr Yau. She had given the court the impression that it was Mr Yau who wanted to give her details of his new company. However, the truth is that she had pestered Mr Yau for more information about landbanking in order “to study the investment” and to “pick apart the details of everything”. By not disclosing her e-mail of 23 April 2008, Ms Linnet Tan avoided being cross-examined on it when she was in the witness box. Admittedly, the plaintiffs’ counsel, Ms Rajah, offered to recall Ms Linnet Tan as a witness but Mr Tan declined the invitation and preferred to submit on her failure to disclose the relevant e-mail. Admittedly, Mr Yau did say in one of his e-mails to Ms Linnet Tan that he could not give her too many details as he had to protect the interest of those who were joining him and his answers to Ms Rajah’s rather probing questions on this statement were not altogether satisfactory. However, the fact remains that there was insufficient proof that Mr Yau had impliedly solicited Ms Linnet Tan to join his new business.
[129] As for Ms Linnet Tan’s claim that she was disappointed that Mr Solibun, a Group Manager within her sales team, had been solicited to leave Walton Malaysia, this must also have been an implied solicitation. Mr Solibun stated in his AEIC (at para 28) as follows:
[130] I find Mr Solibun a more credible witness than Ms Linnet Tan and accept his evidence.
[131] In her eagerness to tarnish Mr Yau, Ms Linnet Tan also alleged that she had been invited to see the office that was intended to house the rival company that Mr Yau had intended to set up. However, her recollection of events was so faulty that she even got the building that they went to view wrong. Mr Yau explained that the property viewed on that day was not intended for a landbanking company but for another business that he was minded to be involved in. I find that in the light of Ms Linnet Tan’s other unreliable evidence, I cannot, on the basis of her uncorroborated evidence, hold that Mr Yau had intended to find an office for a landbanking business.
[132] Ms Linnet Tan’s former boss, Mr Murali, claimed that it was possible that she had e-mailed Mr Razak on 29 April 2008 and spoken ill of Mr Iseli because she “could see a clear way to getting promoted or taking control of the sales force” if Mr Iseli and senior members of his team were removed from the company. He added derisively that she was “the sort of person who would do this”. I agree with Ms Rajah that Ms Linnet Tan’s evidence should be evaluated without considering the allegations of bribery or financial gain. Even so, while the evidence of Mr Yau had flaws which were pointed out quite effectively by Ms Rajah, I nonetheless prefer his overall evidence and that of Mr Iseli over the tesitmony of Ms Linnet Tan and Mr Razak. As such, I find that the plaintiffs did not prove that Ms Linnet Tan had been impliedly solicited to leave Walton Malaysia by the defendants.
Whether Mr Hernandez was solicited
[133] The plaintiffs’ assertion that Walton Malaysia’s Team Manager, Mr Hernandez, was solicited by Mr Iseli to leave Walton Malaysia at a meeting in the latter’s house in Kota Kinabalu on 26 April 2008 was contradicted by Mr Hernandez’s e-mail to Mr Razak on 28 April 2008. In the said e-mail, Mr Hernandez categorically stated that no offers had been made to him at the said meeting to join the new venture although “the options were open”.
[134] When cross-examined Mr Hernandez conceded that the allegation that he had been solicited was inconsistent with his e-mail to Mr Razak. He testified as follows:
[135] Mr Hernandez’s e-mail of 28 April 2008 to Mr Razak must be viewed in the context of his state of mind at the material time. He testified as follows:
[136] After the meeting on 26 April 2008 at Mr Iseli’s house, Mr Hernandez attempted to obtain evidence of the former’s solicitation by secretly taping a subsequent conversation with Mr Iseli. However, the transcript of the taped conversation revealed that Mr Iseli had stated as follows:
[137] I thus find that the plaintiffs had not proven that Mr Hernandez had been solicited to leave Walton Malaysia at Mr Iseli’s house on 26 April 2008.
Whether Mr Liew Jer Wei was solicited
[138] Walton Malaysia’s witness, Mr Liew, claimed to have been “directly” solicited when he had coffee with Mr Iseli at the Lodge Restaurant in Kuala Lumpur on 17 April 2008 (the “Lodge meeting”). However, when cross-examined, he testified that Mr Iseli had told him at the Lodge meeting that “there’s nothing on the table, yet”. This led to the following exchange between Mr Yau’s counsel, Mr Tan, and Mr Liew before the latter finally conceded that Mr Iseli had not made him an offer of employment:
[139] When referring to the Lodge meeting in his AEIC, Mr Liew omitted important information that would have cast a different light on the meeting. First, he did not refer to an e-mail that he had sent to Mr Razak shortly after the Lodge meeting, in which he stated that Mr Iseli had told him that he was not being poached or asked to “go over”. When asked why he did not reveal this in his AEIC, Mr Liew said that he had forgotten to do so.
[140] Secondly, Mr Liew did not mention that a sales representative from YTL Tours had interrupted the meeting to discuss a proposed incentive trip to Hanoi that was being planned by Mr Iseli. When cross-examined, he admitted that in April 2008, as well during as the previous months, Mr Iseli had tried to raise the morale of Walton Malaysia’s retail sales staff and had continued to encourage the company’s Team Managers to improve their performance.
[141] Thirdly, Mr Liew did not disclose that during the Lodge meeting, Mr Iseli had also been checking on the commission structure of rival companies and had talked to Mr Razak on the phone about this matter. Mr Yau’s counsel, Mr Tan, rightly pointed out that if Mr Iseli had really wanted to solicit Walton Malaysia’s retail sales staff to leave the company, he would not have fought so hard to increase their commission as this would have made it harder for him to persuade them to leave the company.
[142] I find that Mr Liew’s evidence that he had been solicited by Mr Iseli to leave Walton Malaysia most unreliable. As such, he failed to advance Walton Malaysia’s case on solicitation.
Whether Ms Shanta Krishnan was solicited
[143] Ms Shanta Krishnan (“Ms Shanta”), the sister of the then Managing Director, Mr Murali, also claimed to have been solicited by one Mr Robin on Mr Iseli’s behalf to leave Walton Malaysia. Like other witnesses from Walton Malaysia, she said that that it was only her own “impression” that she was being solicited because nothing had been openly said about joining Mr Iseli.
[144] Ms Shanta’s allegation that she had been impliedly solicited to leave Walton Malaysia cannot be believed. She readily agreed that it was “logical” that if Mr Iseli had wanted to plot against the company, she would have been the last person to be approached as everything disclosed to her would get back to her brother, Mr Murali. Hence, Mr Yau’s counsel, Mr Tan, submitted that Ms Shanta’s impression of being solicited by Mr Iseli through Mr Robin was “totally skewed”.
[145] Ms Shanta’s evidence was unpersuasive. She was so keen to advance the company’s case that a sub-section in her AEIC had a heading “Robin’s role in Iseli’s and Yau’s plans”. When cross-examined on why she had such a misleading heading when nothing in that sub-section had anything to do with Mr Yau, she said that it was a mistake and that at no point in time did she and Robin talk about Mr Yau. I find that Ms Shanta’s claim that she had been solicited to leave Walton Malaysia was not proven.
Whether Ms Jenme Hoh was solicited
[146] As for the alleged solicitation of Ms Jenme Hoh (“Ms Hoh”), Walton Malaysia’s Team Manager, Mr Murali stated in his e-mail to Mr Britton on 3 April 2008 that Ms Hoh had told him that she had been approached at a company seminar on 29 March 2008 by Mr Iseli, who told her about a new company that had made offers to Walton Malaysia’s DMs regarding a better product and better commissions. Mr Murali’s sister, Ms Shanta, stated in her AEIC (at para 50) that Ms Hoh had also told her that Mr Iseli had mentioned that another company had a “better product and better commission”.
[147] Ms Hoh’s version of her encounter with Mr Iseli at the seminar was quite different from the version in Mr Murali’s e-mail. In her AEIC Ms Hoh had merely stated (at paras 12 and 13) that Mr Iseli had asked her at the seminar whether she had “heard about a new company in town” and that she told him that she was hungry and could not think of anything other than food. She added (at para 14) that after this, she was “never approached or spoken to by Iseli again”. When cross-examined, Ms Shanta agreed that Ms Hoh’s version of her encounter was different. The evidence of Mr Murali and Ms Shanta on the solicitation of Ms Hoh was unconvincing and I find that it was not proven that Ms Hoh had been solicited by Mr Iseli at the seminar in question.
Whether Mr Patrick Ng was solicited
[148] There were other retail sales staff from Walton Malaysia who testified but I had the distinct impression that many of them were far too concerned as to how their bosses might view their testimony in court. I need only mention one more witness, Mr Patrick Ng Chee Weng (“Mr Ng”), a Group Manager who had been suspended from his duties because he was perceived to be close to Mr Iseli. Mr Ng was a combative witness who had to be reminded not to use impolite language in court. He stated in his AEIC that sometime in early 2008, a number of persons, including Mr Medina and Mr Solibun, gathered at Mr Iseli’s apartment and discussed plans about starting a new marketing company to sell among other things, landbanking products. It is one thing to discuss the setting up of a new company and another to actually do so. Furthermore, Mr Ng did not reveal this “juicy” information to the Interborder investigation team when he was interviewed in early April 2008. It was only after his suspension had been lifted that he had a lot to say about Mr Iseli, including what the latter had told him and others before and after the Interborder team was assembled.
[149] Mr Ng also claimed in his AEIC at para 16 that Mr Iseli had asked him to join the new company to be set up and to become one of its directors and shareholders. He added that he told Mr Iseli that he needed to know more about the new company and the products it intended to sell but Mr Iseli was unable to provide the requisite information in writing. If Mr Ng’s evidence is to be believed, Mr Iseli had clearly made him an express offer to join the new company and become one its directors and shareholders. However, Mr Razak testified that that the only clear instance of solicitation was the implied solicitation of Ms Linnet Tan.
[150] Mr Yau’s counsel, Mr Tan, suggested that Mr Ng had lied to keep his job. Mr Razak admitted that the fact that Mr Ng had agreed to file an AEIC in support of the plaintiffs’ case was a relevant factor when considering whether the suspension of the latter from his duties should be lifted. Mr Razak testified as follows:
[151] I cannot, merely on Mr Ng’s words, find that the defendants had solicited Walton Malaysia’s staff to leave that company to join them.
Whether a massive walk-out had been planned
[152] As has been mentioned, Walton Malaysia’s former Managing Director, Mr Murali, tried to alert the company about Mr Iseli’s alleged solicitation of its staff in his e-mail to Mr Britton on 3 April 2008. Part of his e-mail referred to a planned massive walk-out as a result of the defendants’ solicitation efforts.
[153] Mr Murali’s information regarding the proposed walk-out was plain hearsay. He said that Mr Liew informed him that one Ms Sammi Lee (“Ms Lee”), a team manager at Walton Malaysia, had found out from another team manager, Ms Clara Tan (“Ms Tan”), that there would soon be a walkout from Walton. Neither Ms Tan nor Ms Lee were called to testify on the alleged walk-out. Furthermore, while Mr Murali said that he had been told that the walkout from Walton Malaysia had been scheduled for 15 April 2008, Mr Liew testified that he did not give Mr Murali any date for the walk-out while Ms Hoh was unable to recall any date for the walkout. As such, the question of the proposed walk-out, which did not materialise, need not be further considered.
Alleged solicitation in Malaysia after 5 May 2008
[154] As for whether there was any solicitation of Walton Malaysia’s staff after 5 May 2008, Mr Razak testified that the only instance of solicitation after 5 May 2008 that he could recall was the so-called “Penang incident”.

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Walton International Group (Singapore) Pte Ltd and others v Yau Kwok Seng Winston and another

Grounds of decision

Introduction

Background

Summary of the Plaintiffs’ Claims against the Defendants

The Key Witnesses

The Alleged Solicitation in Singapore

Resignation of the five finance staff

The lunch and dinner

Ms Lusi’s evidence

Mr Britton’s evidence on Ms Lusi’s allegations

Mr Yau had no concrete plans in January 2008

Conclusion on solicitation in Singapore

Alleged Solicitation in Malaysia

The TSI presentation

Implied solicitation of Ms Linnet Tan

Whether Mr Hernandez was solicited

Whether Mr Liew Jer Wei was solicited

Whether Ms Shanta Krishnan was solicited

Whether Ms Jenme Hoh was solicited

Whether Mr Patrick Ng was solicited

Whether a massive walk-out had been planned

Alleged solicitation in Malaysia after 5 May 2008