Dawe

- vs -

Wayfoong Mortgage & Finance (Singapore) Ltd

Judgment

FA Chua J

(delivering judgment of the court)

1. On 10 July 1978, a bankruptcy petition was presented by the respondents against the appellant in respect of the non-payment of a final judgment amounting to $1,077,919.33 dated 22 November 1977, obtained by the respondents against the appellant in the High Court, Singapore. Receiving and adjudication orders were made against the appellant on 27 October 1978. In the petition it was stated that the appellant ‘has for the greater part of six months next preceding the presentation of this petition resided at No 15, Barker Road, Singapore, within the jurisdiction of this court.’ The petition was signed and presented by Mr. Keng Ban Heng, the managing director of the respondents, who was duly authorised to sign and present the petition on behalf of the respondents. The petition was verified by the affidavit of Mr. Keng Ban Heng.

2. On 5 February 1979, the appellant filed a motion for an order that the receiving and adjudication orders be rescinded and annulled and that the petition of the respondents be set aside.

3. The motion was heard by the learned Chief Justice on 16 March 1979, who dismissed the motion with costs.

4. The appellant now appeals.

5. In support of his motion the appellant filed two affidavits. The appellant’s evidence in his affidavits is this.

6. He began to reside at No 15 Barker Road, Singapore, with his family on or about 15 July 1971, and continued to reside thereat until 5 November 1975. During this time he was a businessman and was involved in running the Mosbert Group of Companies and was a director in many companies of the said group. On 5 November 1975, he left Singapore in order to make an international business trip which included visits to Thailand, Hong Kong and the United Kingdom. Pursuant to this trip he entered Thailand on 5 November 1975. He travelled on his Singapore passport. After visiting Bangkok, Hong Kong and the United Kingdom he returned to Bangkok, on 12 December 1975, and took up residence in Thailand as from that date. He decided to take up residence in Thailand as a result of information which he had received from various reliable sources in Singapore from which he drew the conclusion that he would be apprehended if he returned to Singapore. He has never returned to Singapore since he left on 5 November 1975.

7. He resided in Bangkok from 12 December 1975 to 21 July 1976, during which period he made one short trip to Taiwan and another short trip to India. In March 1976, he applied for and was granted a certificate of residence from the Thai Government in about April 1976. His wife also resided with him in Bangkok from June 1976, so that they could set up a house together in Bangkok.

8. In July 1976, he decided to cease to be a resident of Thailand and decided to take up a new residence in Taiwan. He entered Taiwan on 22 July 1976, using his Singapore passport. Subsequently his wife and children joined him in Taipei, Taiwan, in order to set up a new home thereat.

9. Within a few days of arrival in Taiwan, he applied for and was granted a passport of Taiwan on 16 August 1976. His Taiwan passport was issued to him in his Chinese name ‘Law Sheng Moh’.

10. Upon the issuance of the Taiwan passport he was given an identity card in his Chinese name which was only issued to citizens of Taiwan. In taking out Taiwanese citizenship and taking up residence in Taiwan he has given up his Singapore citizenship and he is no longer domiciled in Singapore.

11. As from 16 August 1976, he has not at any time travelled on his Singapore passport but has travelled solely on his Taiwan passport.

12. He lived in Taiwan until 28 August 1978, when he went to the United States of America in order to settle some of his business affairs in California. He was remaining for the time being in the USA in order to settle his affairs. (His affidavits gave his address as c/o Messrs Breen & Parks, San Francisco).

13. Pursuant to his change of residence from Singapore to Thailand his wife arranged in April 1976, for No 15 Barker Road, Singapore, to be let for a fixed term of two years as from 1 June 1976, to 31 May 1978, to Messrs C Itoh &: Co Ltd. The tenancy agreement was entered into by Messrs Sunshine Securities Pte Ltd which held the title to No 15 Barker Road ‘as a matter of convenience’. At the expiry of the tenancy on 31 May 1978, No 15 Barker Road has been vacant as far as he knew. In about the first week of October 1978, No 15 Barker Road was sold. He had not resided in any other residence in Singapore since the date he began to reside there on 15 July 1971.

14. It is first submitted by Mr. Cashin, counsel for the appellant, that on the facts that have been deposed to by the appellant in his affidavits, the affidavit of Mr. Keng Ban Heng verifying the petition was untrue. Mr. Cashin says that Mr. Keng Ban Heng knew perfectly well at the time he swore his affidavit on 24 June 1978, that the appellant had not ‘for the greater part of six months next preceding the presentation of the petition resided at No 15 Barker Road, Singapore, within the jurisdiction of this court.’ Mr. Cashin says that it was well-known at that time that the appellant was not residing at No 15 Barker Road and if Mr. Keng Ban Heng had made inquiries he would have found that that was so. It is submitted that consequently the appellant was not a ‘debtor’ within the meaning of s 3(3) of the Bankruptcy Act (Cap 18, 1970 Ed) (the Act) and the receiving and adjudication orders ought not to have been made.

15. We are unable to accept this submission.

16. The bankruptcy notice and the bankruptcy petition were served on the appellant by substituted service. Notices were published in the Straits Times on 16 May 1978 and 7 October 1978, respectively.

17. The statement of Mr. Keng Ban Heng in the bankruptcy petition in relation to the residence of the appellant was made to the best of his knowledge, information and belief.

18. The appellant was well aware of the bankruptcy proceeding taken by the respondents against him. Early in June 1978, he was aware of the bankruptcy notice that had been issued against him. He took no steps then or at the hearing of the petition to challenge the jurisdiction of this court. The receiving and adjudication orders were rightly made against the appellant.

19. It was on 5 February 1979, that the appellant filed the present motion challenging the jurisdiction of this court.

20. The motion of the appellant was made under s 105(1) of the Act which provides:

    Where in the opinion of the court a debtor ought not to have been adjudged bankrupt … the court may annul the adjudication.

21. It is clear that under s 105(1) a bankruptcy may be annulled in the discretion of the court where the debtor ought not to have been adjudged bankrupt. It is for the debtor to satisfy the court that he ought not to have been adjudged bankrupt.

22. Mr. Cashin submits that on the facts before the learned Chief Justice the appellant had satisfied the court that he was not a ‘debtor’ within the meaning of s 3(3) of the Act.

23. Mr. Cashin submits that the appellant has satisfied the court that he was not domiciled in Singapore, that he has not, within a year before the date of the presentation of the petition, ordinarily resided in or had a dwelling house or place of business in Singapore, or carried on business in Singapore personally or by an agent within Singapore. Now, these are questions, as Buckley LJ said in Re A Debtor [1978] 1 WLR 1512, the investigation of which must involve consideration of the appellant’s state of mind at the relevant time; they are matters which give rise to subjective questions on the appellant’s state of mind.

24. The appellant, as he said, was involved in running the Mosbert Group of Companies and his interests were in Singapore. He had a dwelling-house here within one year before the date of the presentation of the petition.

25. The points raised by the appellant in his affidavits were raised before the learned Chief Justice and the learned Chief Justice was not prepared to accept the appellant’s affidavits and the learned Chief Justice said that the best thing was for the appellant to appear in Singapore and be prepared to submit to cross-examination on the facts he deposed to in his affidavits and the learned Chief Justice was prepared to adjourn the hearing. The appellant’s counsel, however, said that she would not be able to produce the appellant and that if the appellant did come to Singapore he would be arrested. Thereupon the learned Chief Justice dismissed the motion with costs.

26. As we have said the questions which have to be decided in this case are questions subjective to the appellant — questions of his frame of mind, his intention at various dates in relation to his residence, domicile and so forth. Those are matters in respect of which it seems to us that the physical presence of the appellant in Singapore to be cross-examined before the court is very highly desirable.

27. It seems to us that we should not interfere with the decision of the learned Chief Justice and it follows that this appeal must fail.

28. The appeal is dismissed with costs.

Cases

Debtor, A, Re [1978] 1 WLR 1512

Legislations

Bankruptcy Act (Cap 18, 1970 Ed): s. 3(3), s. 105(1)

Representation

HE Cashin and Dr Myint Soe (Murphy & Dunbar) for the appellant.

Tan Bok Hoay (Donaldson & Burkinshaw) for the respondents.

Mohamed Harith Kassim (Assistant Official Assignee) for the Official Assignee.