Tang Kay Heng Alan v Purwadi
[2003] SGHC 312

Case Number	:	Suit 1435/2002/D
Decision Date	:	23 December 2003
Tribunal/Court	:	High Court
Coram	:	Kan Ting Chiu J
Counsel Name(s)	:	Tan Hong Seng (Tan Lim & Wong) for plaintiff; Leonard Hazra and Chan Hoe (David Lim & Partners) for defendant
Parties	:	Tang Kay Heng Alan — Purwadi

1.         The plaintiff sued the defendant for his share of commission in a deal he claimed he helped to put through as broker.

2.         The deal involved 42.1% of the shares of a Chinese company which operates a toll road in China.  The shares were held by Spring Sun International Ltd (“SSI”), a wholly-owned subsidiary of Spring Sun Highway Ltd (“SSH”).  The transaction was carried out by SSH selling all the shares of SSI, thus indirectly, the 42.1% shares of the Chinese company.  The purchaser was IPCO International Ltd (“IPCO”), a Singapore listed company.  The defendant was a director and the chairman of IPCO.

3.         At the close of the plaintiff’s case, counsel for the defendant submitted that there was no case for the defendant to answer, and accepted that if the submission was made and failed, the defendant cannot enter his defence.  After hearing submissions from both counsel, I dismissed the claim.  The plaintiff appeals against my decision.

The plaintiff’s case

4.         SSI and SSH were under the control of Chng Heng Tiu (“Chng”), an old and good friend of the plaintiff.  Chng had asked the plaintiff to look for a buyer for the 42.1% shares.

5.         The plaintiff worked on the assignment and introduced Chng to the defendant.  The negotiations were carried out between Chng, the defendant, Ong Chee Hong (“Ong”) and the plaintiff.

6.         Chng agreed on behalf of SSH to pay the plaintiff US$7.5m for his services.  It was also agreed that commissions of US$15m and US$7.5m were to be paid to the defendant and Ong respectively.

7.         The plaintiff, the defendant and Ong decided to use a company as the vehicle for receiving their commissions.  The plaintiff found a shelf company for the purpose, Lotos Investments Ltd (“Lotos”) a British Virgin Islands company.  While only Ong was registered as the director and shareholder of the company, it was their company.

8.         Arrangements were then made for SSH to issue a letter to Lotos dated 1 July 1999 wherein SSH confirmed the appointment of Lotos as its broker in selling “our wholly owned subsidiary M/s Spring Sun International Ltd and/or our 42.1% interests in [the Chinese company] including shareholder’s advances and accrued interest” and agreed to pay Lotos or its nominees the commission of US$30m.

9.         The plaintiff, the defendant and Ong took steps to record the sharing of the US$30m.  A Commission Sharing Agreement was made on 30 December 1999 between them.  This was typed on SSH’s letter of 1 July 1999 and it reads

Commission Sharing Agreement

1. Tang Kay Heng’s group of companies US$7.5 million __ [signature]

2. Thew Ah Ba’s group of companies US$7.5 million ____ [signature]

3. Purwadi’s group of companies US$15.00 million _____ [signature]

            Dated 30^th December 1999 

18.       In any event, he moved from that line under cross-examination when he agreed with the defendant’s counsel that the statutory declaration was entirely inconsistent with his evidence.[2]  On his own case, he lied twice on the same issue, when he made the statutory declaration, and when he tried to explain it away.

The commission sharing agreement

19.       The plaintiff’s case is that his document sets out the division of the US$30m commission between himself, the defendant and Ong.

20.       The agreement, on its face, does not reflect that.  Ong was not named as a party or a recipient.  Instead the mysterious Thew Ah Ba signed.  Ong was to receive nothing as the payment was to be made to Thew’s group of companies.

21.       Furthermore, the agreement does not even say that the plaintiff is to receive a share of the commission.  It refers to “Tang Kay Heng’s group of companies”.  The group of companies is not identified in the agreement, and the plaintiff did not offer any explanation at the trial.  No attempt was made to show that “Tang Kay Heng’s group of companies” is synonymous with Tang Kay Heng.  The onus was on him to show that he was the intended recipient.

The plaintiff’s right to sue the defendant

22.       The plaintiff’s case is that he, the defendant and Ong had acquired Lotos and arranged with SSH that the commission was to be paid to Lotos.  Lotos was then to parcel out the commission to them.  As so explained, Lotos was the collection agent for the three of them.

23.       In his statement of claim the plaintiff also alleged that “(t)he Plaintiff also constituted the Defendant his agent to make arrangements with SSH for Lotos to receive his commission of US$7.5 million from SSH and to account to the Plaintiff for the same.”[3]  Having pleaded that, he only deposed in his affidavit of evidence-in-chief “I … left it to the Defendant and Ong to arrange how my commission would be paid by SSH to Lotos”, without saying that he wanted the defendant to be his agent for that purpose, or that the defendant agreed to be his agent.

24.       In order to make payment Lotos must receive the commission.  However the plaintiff acknowledged that by the letter of 8 July 2000, Lotos had confirmed that the US$30m was to be paid by the defendant to Acostar.  When Lotos agreed that the commission was to be paid to Acostar, it ceased to be the receiving party.

25.       The defendant’s liability was to pay Acostar on demand.  There was no assertion that the payment was due.  There was no allegation or evidence that Acostar had demanded payment of the US$30m.

26.       The plaintiff did not take into account the implications and consequences of the changes in the arrangements for the payment of the US$30m.  He just took the position that he was suing the defendant because the defendant had undertaken to pay the US$30m to Lotos.[4]  This was contrary to Lotos’ confirmation, and the defendant’s undertaking of 8 July 2000 that the US$30m was to be paid to Acostar.

The defendant’s submissions

27.       Counsel for the defendant submitted that there was no case to answer on the grounds that (i) accepting the plaintiff’s evidence at face value, no case was been established in law, and (ii) the evidence led from the plaintiff was so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged.

My findings

28.       There were fundamental defects in the plaintiff’s case.  The commission sharing agreement on which he based his claim does not give him to any share of the commission.

29.       His own case is that Lotos was the collection vehicle for him, the defendant and Ong.  Consequently Lotos should sue for the commission if it is not paid.  However, by the letter of 8 July 2000 the payment was to be made to Acostar on demand.  If the US$30m was not received upon demand, Acostar should sue the defendant for it.  The plaintiff has no basis to sue the defendant for his alleged share of the US$30m.

30.       The foregoing conclusions are arrived at on the acceptance of the plaintiff’s evidence at face value.  When the evidence was considered, I found it to be very unsatisfactory.  When his claim as broker and his entitlement to the commission was disputed he produced no documents to substantiate that, and did not call any one from SSH to corroborate his claim.  He wanted the court to take him at his word, even when he admitted that he had executed a statutory declaration that contradicted the very basis of his claim.  He pleaded that the defendant was his agent for collecting the commission, but lead no evidence on that, not even from himself.  He was as difficult to understand as to believe.

31.       The plaintiff’s case was seriously flawed in law and on the facts, and was not supported by any credible evidence.  He had failed to make out his claim on a balance of probabilities.  For these reasons his claim was dismissed with costs without the defence being heard.