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In the Singapore International Commercial Court
of the republic of singapore
[2021] SGHC(I) 11
Suit No 5 of 2020
Between
(1)
The Micro Tellers Network Limited
(2)
Michael Lin Daoji
(3)
Rio Lim Yong Chee
(4)
Wong Zhi Kang, Clement
Plaintiffs
And
(1)
Cheng Yi Han (Zhong Yihan)
(2)
Ling Hui Andrew
(3)
Providence Asset Management
(4)
Then Feng
Defendants
Suit No 8 of 2020
Between
(1)
Providence Asset Management
(2)
5 and 2 Pte Ltd
Plaintiffs
And
(1)
Then Feng
(2)
Lee Moon Young
Defendants
judgment
[Tort] — [Deceit]


This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.
The Micro Tellers Network Ltd and others
v
Cheng Yi Han and others and another suit
[2021] SGHC(I) 11
Singapore International Commercial Court — Suit Nos 5 and 8 of 2020
Simon Thorley IJ
14–16, 21–24 June 2021; 6 August 2021
22 September 2021 Judgment reserved.
Simon Thorley IJ:
Introduction
The trial of Suit 5 and Suit 8
1 These two actions, SIC/S 5/2020 and SIC/S 8/2020 (“Suit 5” and “Suit 8” respectively), raise similar causes of action based on facts which, to a certain extent, overlap. They were therefore ordered to be tried together. The trial commenced on 14 June 2021 and was scheduled to last for 10 working days.
2 In the days leading up to the trial, the Plaintiffs in Suit 5 reached a settlement with the 2nd and 3rd Defendants in Suit 5. The 3rd Defendant, Providence Asset Management (“PAM”), is a company incorporated in the Cayman Islands. Its Managing Partner is the 2nd Defendant in Suit 5, Ling Hui Andrew (“Mr Ling”), who is a Singapore citizen.
3 This resulted in the 1st Defendant in Suit 5, Cheng Yi Han (“Mr Cheng”), who is also a Singapore citizen, seeking leave to issue a Third Party Notice against the 2nd and 3rd Defendants, PAM and Mr Ling. Leave was granted on the basis that any issues arising on the Third Party Notice would not be raised at the trial and that any necessary directions on the Third Party Notice would be given after judgment following the trial.
4 The 3rd Defendant in Suit 5, PAM, is also the 1st Plaintiff in Suit 8. The 2nd Plaintiff in Suit 8, 5 and 2 Pte Ltd (“5&2”), is a Singapore company of which Mr Ling is a director.
5 The 4th Defendant in Suit 5, Then Feng (“Mr Then”), is a Singapore citizen who is also the 1st Defendant in Suit 8. The 2nd Defendant in Suit 8 is Mr Then’s wife but the action against her was discontinued on 29 September 2020. Mr Then was thus the only remaining defendant in Suit 8.
6 At the start of the trial, oral opening submissions were first made by counsel for the Plaintiffs in both actions, followed by counsel for Mr Cheng, and then by Mr Then, who was at that time a litigant in person. The first witness to give evidence was Frederic Willy Gaillard (“Mr Gaillard”), a Swiss national resident in Singapore. Mr Gaillard provided an affidavit of evidence-in-chief (“AEIC”) in each action which were then supplemented by further AEICs in each action. He was cross-examined by Mr Then on his evidence given both in Suit 5 and in Suit 8. Following the conclusion of his oral evidence, counsel for the Plaintiffs in Suit 5 informed the court that settlement negotiations between the Plaintiffs in Suit 5 and Mr Cheng, the 1st Defendant in Suit 5, were at an advanced stage, and that he was hopeful that an agreement could be reached if the trial was adjourned until the following day. This was not opposed.
7 The following day, 15th July 2021, the court was informed that settlement had indeed been reached and that Mr Cheng and his counsel would play no further part in the trial. The Third Party Notice also fell away. Mr Then was thus also the sole remaining defendant in Suit 5 as he had become in Suit 8.
8 This change of events raised a number of considerations. First, Mr Then was acting in person and the original trial schedule envisaged that the next four witnesses to be called on behalf of the Plaintiffs in Suit 5 would be cross-examined first by counsel for Mr Cheng and then by Mr Then. The time estimate provided for cross-examination indicated that the bulk of the cross-examination would be carried out by counsel for Mr Cheng with only a small amount of time being allocated thereafter to Mr Then. As counsel for Mr Cheng would now play no further part in the trial, this meant that Mr Then would have to conduct the cross-examination himself. Since this new development only happened part way through trial, Mr Then was understandably not in a position to conduct all the cross-examination that day.
9 Second, the pleadings in Suit 5 were complex, involving, inter alia, an allegation of conspiracy involving Mr Then, Mr Ling and Mr Cheng, and it was unclear precisely what case would now be advanced by the Plaintiffs in Suit 5 against Mr Then following the settlement of the actions against the other Defendants in Suit 5.
10 Third, Mr Then indicated that although he had prepared himself to carry out his part of the cross-examination of the four Plaintiff’s witnesses in Suit 5, he was not at that time properly prepared to carry out the cross-examination of Mr Ling who was only scheduled to give evidence the following week.
11 Following submissions, I concluded that it was necessary that the Statement of Claim in Suit 5 should be amended so as to make clear what case was being raised against Mr Then, now the only defendant, and that the AEICs served on behalf of the Plaintiffs in Suit 5 should be amended so as to exclude matters which were now irrelevant. This necessarily meant that the trial of Suit 5 could not continue as planned.
12 Counsel for the Plaintiffs in Suit 8 however invited the court to continue with the trial of Suit 8. This was not opposed by Mr Then, provided that he had a proper opportunity to prepare his cross-examination of Mr Ling. This was a course that was acceptable to counsel for the Plaintiffs in Suit 5. Accordingly, I directed that Suit 5 should be adjourned and that a case management conference for further directions in that action should be held after Judgment in Suit 8 but that Suit 8 should proceed after an appropriate adjournment to enable Mr Then to prepare the cross-examination of Mr Ling.
13 The remainder of this Judgment is therefore directed solely to the facts and issues arising in Suit 8. It is based and based only on the evidence adduced in Suit 8 and nothing that I say or conclude can have any effect on the now separate trial of Suit 5. Whilst separate trials are undesirable, in the circumstances, this was the only way forward that was fair to all parties.
The Continued Trial of Suit 8
14 The trial of Suit 8 resumed the following Monday, 21 June 2021. Mr Then had retained new counsel, Mr Tan Hee Joek (“Mr Tan”), to act on his behalf. Mr Tan made it plain that his involvement was limited to cross-examining Mr Ling in relation to what has been referred to as the “Walkers Professional Services Issue” (see [35] below) and that Mr Then would otherwise be conducting his own defence. Counsel for the Plaintiffs (in Suit 8) did not object to this course.
15 Mr Ling then gave evidence by way of his AEIC in Suit 8 and was cross-examined by Mr Tan and Mr Then for a period of some 2.5 days finishing in the evening of Wednesday 23 June 2021. This concluded the Plaintiff’s evidence. Mr Then was scheduled to give evidence on the following two days.
16 However, on the morning of Thursday 24 June 2021, Mr Then (by then acting in person again) submitted that the Plaintiffs had not made out a case that he was required to answer on the basis of the evidence that had been adduced on their behalf. There were then adjournments during which the authorities on “No case to answer” in a civil trial were reviewed so that the court could be satisfied that Mr Then was fully aware of the consequences of the decision he was proposing to make.
17 Following those adjournments, Mr Then confirmed that he was submitting that there was no case to answer and gave an undertaking that he would not call any evidence in support of his case. Thereupon, the trial was adjourned for written closing submissions to be prepared.
No Case to Answer in Civil Cases
18 Civil disputes are determined in relation to any cause of action pleaded by a plaintiff on the basis of the pleadings and the evidence adduced before the court. The legal burden of proof lies on the plaintiff and will only be discharged if the court is satisfied that the plaintiff has proved its case.
19 In a trial where evidence is adduced both by the plaintiff and by the defendant, the evidential burden, which is initially placed on the plaintiff to adduce sufficient evidence to prove its case, may shift to the defendant to adduce evidence to rebut the plaintiff’s evidence. The court then assesses all the evidence to determine whether, on the balance of probabilities, the plaintiff has proved its case.
20 It is however always open to a defendant, having heard the evidence adduced on behalf of the plaintiff, to elect to call no evidence on the basis that the plaintiff’s evidence is insufficient to transfer the evidential burden onto the defendant so that the plaintiff has failed to prove its case. Hence the expression “No case to answer”: see O 35 r 4(3) and O 110 r 3(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).
21 This is plainly a bold step for a defendant to take and is not a frequent occurrence in civil proceedings. Once made, the defendant cannot thereafter seek to call evidence. The ultimate decision rests on the judicial assessment of the plaintiff’s evidence alone.
22 The authorities in relation to “No case to answer” are summarised in Jeffrey Pinsler, Singapore Court Practice (LexisNexis, 2021) at para 35/4/10:
Submission of no case. At the conclusion of the plaintiff’s case, the defendant may submit that there is no case to answer. In other words, the defendant alleges that the plaintiff has not adduced the requisite evidence to establish the legal elements of his claim. The judge would sustain a plea of no case to answer if the plaintiff’s case has no basis or is ‘so unsatisfactory or unreliable that the court is able to find that the burden of proof on the plaintiff has not been discharged’. See Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004, at [209]; Central Bank of India v Hemant Govindprasad Bansal [2002] 1 SLR(R) 22, at [21] and [25]; Hemant Govindprasad Bansal v Central Bank of India [2003] 2 SLR(R) 33 and Sukhpreet Kaur Bajaj d/o Manjit Singh v Paramjit Singh Bajaj [2008] SGHC 207, at [10]. Such a submission is rarely made because the judge will require the defendant to undertake not to call any evidence in the event that the submission is not upheld. In Ho Yew Kong v Sakae Holdings Ltd and other appeals and other matters [2018] SGCA 33, at [70], the Court of Appeal explained reason for this approach: ‘The rationale underlying the requirement that a defendant who makes a ‘no case to answer’ submission must undertake not to call evidence is that it is inappropriate for a judge to make any ruling on the evidence until it has been completely presented. Further, the imposition of such an undertaking avoids the prospect of the evidence being supplemented depending on the outcome of the court’s evaluation of the plaintiff’s case, as well as the expense and inconvenience that would arise from possibly having to recall witnesses in such circumstances.’ …
In Lena Leowardi v Yeap Cheen Soo [2015] 1 SLR 581, at [23], the court ruled that it is established law that a submission of no case to answer by a defendant will only succeed if the plaintiff’s evidence, at face value, does not establish a case in law or is so unsatisfactory or unreliable that the plaintiff has not discharged its burden of proof. Also see Sakae Holdings Ltd v Gryphon Real Estate Investment Corp Pte Ltd and others (Foo Peow Yong Douglas, third party) and another suit [2017] SGHC 73, at [22], where this proposition is confirmed. The following principles were laid down in Lena Leowardi, at [24]:
(a) First, the plaintiff only has to establish a prima facie case as opposed to proving its case on a balance of probabilities;
(b) Second, in assessing whether the plaintiff has established a prima facie case, the court will assume that the evidence led by the plaintiff is true, unless it is inherently incredible or out of common sense; and
(c) Third, if circumstantial evidence is relied on, it does not have to give rise to an irresistible inference as long as the desired inference is one of the possible inferences.
23 The impact of the first of these principles was considered recently by the Court of Appeal in a judgment of Andrew Phang Boon Leong JA in Ma Hongjin v SCP Holdings Pte Ltd [2021] 1 SLR 304 (“Ma Hongjin”) at [22]–[33]:
Issue 1: the applicable test upon a submission of no case to answer
22 As alluded to above, this particular issue (relating to the applicable test to be applied upon a submission of no case to answer by a defendant) did not really arise in the present appeal. However, as it raises an important point of general importance, and sets the context for the rest of the present discussion, we will make some general observations for guidance in future cases.
23 In the court below, after the appellant had closed her case (as the plaintiff), counsel for the respondent (the defendant) made a submission of no case to answer, coupled with the usual election not to call evidence if the submission failed (such election being obligatory pursuant to the rule laid down by this court in Ho Yew Kong ([17] supra) at [70]). As we shall see, this obligatory election is a matter (or factor, rather) of the first importance.
24 It is important, in the first instance, however, to note that, under general law, the plaintiff bears the legal burden of proving its case against the defendant in a civil case on a balance of probabilities.
25 However, in the situation where the defendant has made a submission of no case to answer, local case law suggests that the plaintiff need only satisfy the court that there is a prima facie case on each of the essential elements of the claim in order to defeat the defendant’s submission of no case to answer and secure judgment in its favour (see, for example, Central Bank of India ([17] supra) at [21] as well as the decisions of this court in Tan Juay Pah ([17] supra) at [37] and Lena Leowardi ([17] supra) at [24]).
26 It might, at first blush, therefore, appear that in a situation where the defendant has made a submission of no case to answer, the standard of proof is different and this was indeed the view that the Judge took in the court below. He was therefore of the view that he had to choose one standard over the other (and chose the former, viz, proof on a balance of probabilities). However, on closer analysis, this is not the case and the Judge was, with respect, mistaken in thinking he had to make a choice when, in fact, none was required. Let us elaborate.
27 The starting point in our analysis is the concept of the legal burden. A plaintiff in a civil claim bears the legal burden of proving the existence of any relevant fact necessary to make out its claim on a balance of probabilities (assuming, of course, that the defendant cannot prove any applicable defences). This flows from the Evidence Act (Cap 97, 1997 Rev Ed) (‘the EA’), and in particular s 103, which requires that a person desiring a court to give judgment as to any legal right or liability dependent on the existence of facts prove that those facts exist. Though the EA does not, on its face, distinguish between the civil and criminal burdens of proof, it has long been established that the legislation retains the traditional common law distinction between the two (see the decision of the Judicial Committee of the Privy Council (on appeal from the Federal Court of Malaysia) in Public Prosecutor v P Yuvaraj [1970] AC 913 at 920H–921B). Although there has been, on occasion, controversy over the possible existence of a third standard of proof, this court’s decision in Tang Yoke Kheng (trading as Niklex Supply Co) v Lek Benedict and others [2005] 3 SLR(R) 263 at [14] clarified that there are only two such standards of proof - proof on the balance of probabilities for civil cases and proof beyond a reasonable doubt for criminal cases.
28 A closely related (though distinct) concept is that of the evidential burden (or tactical burden). This is borne by the person on whom the responsibility lies to ‘contradict, weaken or explain away the evidence that has been led’ (see the decision of this court in Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR(R) 855 (‘Britestone) at [59]). While the legal burden is determined by considering the pleadings of the parties and determining the material facts relied on by the parties to establish the legal elements of a claim or defence, the evidential burden can shift between the parties based on the state of the evidence (see the decision of this court in Cooperatieve Centrale Raiffeisen-Boerenleenbank BA (trading as Rabobank International), Singapore Branch v Motorola Electronics Pte Ltd [2011] 2 SLR 63 at [30]–[31]).
29 The following passage from Britestone illustrates the operation of these concepts (at [60]):
… [A]t the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of adducing some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the plaintiff that the legal burden is also discharged and making a finding on the fact against the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of that relevant fact would have been discharged by the plaintiff.
30 Crucially, a party’s establishment of a prima facie case on a particular fact on which it bears the legal burden denotes the point at which the evidential burden will shift to the defendant. In the decision of this court in Anti-Corrosion Pte Ltd v Berger Paints Singapore Pte Ltd and another appeal [2012] 1 SLR 427, the issue was whether defects in paint supplied by a paint manufacturer caused discolouration on a building. The appellant’s evidence in that case was found to have demonstrated prima facie that the defective paint was likely the cause of the discolouration, which caused the evidential burden to shift to the respondent. As the respondent adduced no evidence on this point, it was found that the appellant had proven that the discolouration was more likely than not caused by defects in the paint (at [37]–[38]).
31 This, in our view, explains why the applicable test following a submission of no case to answer has been expressed as requiring the plaintiff to prove a prima facie case. Where a submission of no case to answer is coupled with an election not to call evidence (which is obligatory following Ho Yew Kong ([17] supra)), the establishment of a prima facie case on each of the relevant facts in issue essentially results in a finding that the plaintiff has proved those facts on a balance of probabilities. This is because, following the shifting of the evidential burden to the defendant, there is simply no evidence forthcoming from the defendant to disprove the plaintiff’s position or weaken it such that the court can return a finding that the fact in issue is either ‘disproved’ or ‘not proved’ within the meaning of s 3 of the EA (see the decision of this court in Loo Chay Sit v Loo Chay Loo, deceased [2010] 1 SLR 286 at [20]). Seen in this light, the distinction between a prima facie case on the one hand and proof on a balance of probabilities on the other does not mean, as the parties argued below, that the court applies a laxer standard of proof in the former.
32 In summary, the plaintiff does indeed bear the legal burden of proving its case against the defendant in a civil case on a balance of probabilities. Where the defendant has made a submission of no case to answer, this particular standard of proof is met or discharged by the plaintiff satisfying the court that there is a prima facie case on each of the essential elements of its claim. This is because in a situation where the defendant has made a submission of no case to answer, such a submission must (as we have already noted at [23] above) be coupled with an election not to call evidence (pursuant to the principle laid down in Ho Yew Kong), with the result being that if the plaintiff has established a prima facie case on the facts in issue (that are essential to its claim), this would essentially result in the court finding that the plaintiff has discharged its burden of proving the aforementioned facts on a balance of probabilities. This is due to the fact that, upon the plaintiff establishing a prima facie case with respect to the relevant facts in issue, the evidential burden will shift to the defendant. However, because the defendant has had (in the situation of a submission of no case to answer) to elect to call no evidence, it would be unable to adduce (any) evidence to either disprove the plaintiff’s position or weaken it such that the facts that the plaintiff relies upon are ‘not proved’. Put another way, where a defendant elects not to call any evidence upon making a submission of no case to answer, there is simply no contrary evidence from the defendant for the court to consider. The court is only left with the evidence of the plaintiff and if, on a prima facie basis, the evidence satisfies all the ingredients or essential elements of the cause of action, judgment will be entered against the defendant. Because there is simply no balancing exercise of evidence to speak of, it might appear somewhat anomalous to describe the plaintiff as having proven its case on a balance of probabilities. However, such an anomaly is more apparent than real – in such a situation (concerning a submission of no case to answer), provided that it can establish a prima facie case on the facts in issue (that are essential to its claim), the plaintiff has (simultaneously) proved its overall case on a balance of probabilities.
33 We therefore affirm that, in the situation where the defendant has submitted that it has no case to answer and has (as it legally must) also elected to call no evidence if it fails in this submission, the plaintiff would succeed if it can establish that it has a prima facie case on each of the essential elements of its claim. For the avoidance of doubt (and also for the reasons stated above), the plaintiff would (simultaneously) have necessarily proved its (overall) case against the defendant on a balance of probabilities.
[Emphases in the original]
24 The duty of the court is therefore clear. Once a submission of “No case to answer” has been made and is coupled with an election not to call evidence, as is the case here, the court must assess the evidence which has been called by the Plaintiffs to see whether they have established a prima facie case on each of the essential elements of the claims made by them against Mr Then. To the extent that they have, the action will succeed since the Plaintiffs would necessarily also have proved their case against Mr Then on a balance of probabilities (see Ma Hongjin at [33]).
The Pleadings
The Statement of Claim
25 The starting point therefore is to review the pleadings to determine what are the essential elements of the claim made by the Plaintiffs against Mr Then. The claim is based upon on three pleaded causes of action: deceit; unjust enrichment; and claims in partnership on the basis that Mr Then was in partnership with the Plaintiffs (“The Partnership Claim”).
26 The Plaintiffs seek to recover misappropriated moneys by Mr Then totalling US$5,268,000 and S$1,223,000 (“the Sums”). Although a higher sum was pleaded in the Statement of Claim, the Plaintiffs reduced it in their Written Closing Submissions. The Plaintiffs claim that they transferred the Sums to a bank account in the name of Walkers Professional Services Ltd (“WPS”), on the understanding that this was an escrow account owned and controlled by Walkers Solicitors, a global law firm (“Walkers”). in which Mr Then, a solicitor, had formerly been employed as a “Counsel” in Walker’s Singapore office.
27 In or around February 2018, Mr Then was introduced to Mr Ling as a solicitor with Walkers who could arrange for Walkers to provide transactional support and escrow services for business deals by Mr Ling’s companies. In mid-2018, Mr Ling and Mr Then explored the possibility of purchasing an offshore bank to further those deals, and Mr Then represented to Mr Ling that Walkers would act as the solicitors for Mr Ling’s associates, the purchasers for this purpose. A candidate bank was identified but the proposed purchase did not go through. Subsequently, Mr Then informed the Plaintiffs of the possibility of purchasing two other banks, Banco Provincial Overseas NV (“BP Bank”) in Curacao and Freelance Bank Ltd (“Freelance Bank”) in Comoros, for US$8.5 million (US$4 million for Freelance Bank and US$4.5 million for BP Bank). Mr Then represented to the Plaintiffs that Walkers would act as their solicitors and represent them on the proposed purchase, that Mr Then would be the solicitor negotiating the purchase and that Mr Then would also be a “partner in the new venture”.
28 In reliance upon the representation that WPS’ bank account was owned and controlled by Walkers and that Mr Then was acting in his capacity as a solicitor employed by Walkers, the Plaintiffs transferred the Sums into WPS’ bank account to be held in escrow pending the release of the monies for the purchase of BP and Freelance Banks. The Plaintiffs aver that they would not have transferred the money to the WPS bank account had they known that WPS was not affiliated with Walkers.
29 Thereafter Mr Then represented to the Plaintiffs that Freelance Bank was duly purchased for US$4 million and that its name was then changed to “Royal Eastern Bank Ltd” (company number 12398). The Plaintiffs contend that this is a misrepresentation and claim that Mr Then had completed the purchase of Freelance Bank for less than US$4 million but dishonestly informed them of an inflated purchase price. To avoid confusion, I shall continue to refer to this bank as Freelance Bank.
30 Further, unknown, it is said, to the Plaintiffs, once Freelance Bank had been purchased, without informing the Plaintiffs, Mr Then agreed to return ownership of Freelance Bank to the vendor in exchange for a different bank, also called Royal Eastern Bank Ltd, but which carried a different company number 16214 (“Royal Eastern Bank”).
31 The Plaintiffs’ understanding was that the vehicle that was to own Freelance Bank was Star Dust Developments Ltd (“Star Dust”). However Mr Then pleaded that the Royal Eastern Bank was wholly owned by Gestalt Group Limited (“Gestalt”)” but that it held the bank on trust for Star Dust.
32 The Plaintiffs pleaded that they were unaware of this “switch” in banks. While they believed that Gestalt owned a banking licence, they had thought that this was the licence owned by Freelance Bank, and not Royal Eastern Bank. They claimed that this “switch” had deprived them of the entirety of the intended benefit of the purchase of Freelance Bank, or, alternatively, that Mr Then had paid a lower price for Royal Eastern Bank so that he could pocket the difference between US$4 million (which Mr Then claimed was the purchase price of Freelance Bank) and the purchase price of Royal Eastern Bank. In a further alternative they claimed that Freelance Bank was never purchased and that the Royal Eastern Bank was the only vehicle purchased.
33 Mr Then then informed the Plaintiffs that there was no longer a need to purchase BP Bank as the banking licence belonging to Royal Eastern Bank was fit for their desired purpose of providing offshore banking services. When Mr Ling requested that the balance of the Sums (“the Remaining Sums”) be returned to the Plaintiffs, Mr Then eventually confessed that WPS was not owned and controlled by Walkers but was his own personal vehicle. Mr Then later further confessed in June 2019 that WPS no longer had the moneys and that he had misappropriated them and used them for his own purposes. The Remaining Sum has not been repaid.
34 The claims in deceit and unjust enrichment are based on the pleaded false representations. The claim in partnership arises out of an alleged implied partnership between Mr Then and the Plaintiffs which arose out of the course of their dealings and that Mr Then was in breach of the fiduciary duties owed by him to the other partners by acting as he did.
35 In essence, the action in deceit and unjust enrichment is founded on two alleged misrepresentations. First, the representation that WPS was owned and controlled by Walkers and that any sums deposited in the WPS bank account would be held in escrow to the Plaintiffs’ order. I shall refer to this as “the WPS Representation”. The Plaintiffs pleaded that they would not have deposited those sums had they known that the WPS Representation was false. Second, the representation that Freelance Bank was to be (and then had been) purchased for US$4 million when in fact Mr Then had dishonestly informed them of an inflated price, if he purchased the bank at all. I shall refer to this as “the 4 Million Representation”.
The Defence
36 I turn next to consider the Defence to identify matters which are admitted by Mr Then, the matters which are denied, as well as facts positively asserted by him as part of his defence. The Plaintiffs rely upon s 105 of the Evidence Act (Cap 97, 1997 Rev Ed) (“Evidence Act”) for the proposition that Mr Then bears the burden of proving the facts positively asserted by him in his defence. Whilst this is correct, it does not follow that Mr Then’s election not to call any evidence means that he cannot discharge that burden. This could be done in an appropriate case, for example, on the basis of the evidence given by a witness called on behalf of the plaintiff in cross-examination, including any admissions made by that witness.
Admissions by Mr Then
37 Mr Then admits the following:
(a) that he was previously employed by Walkers;
(b) that PAM became a client of Walkers in late 2017 or early 2018;
(c) that the Sums were deposited in the WPS bank account, except that:
(i) S$400,000 was transferred to WPS’s Singapore dollar bank account and not the US dollar bank account;
(ii) US$2,948,000 and not US$2,984,000 was deposited around 23 April 2018
(iii) Mr Then disputes who sent the S$573,000 that was received in the WPS Singapore dollar bank account around 1 November 2018;
(iv) while Mr Ling did pass Mr Then some cash on 11 October 2018, Mr Then disputes that this was US$120,000 and S$250,000 as claimed by Mr Ling, and also disputes whether these moneys were for the purpose of acquiring Freelance or BP Bank;
(d) that Mr Then had become aware that BP Bank was available for purchase at US$8.5 million and that he informed Mr Ling that Walkers would represent PAM as solicitors for the transaction;
(e) that it was thereafter agreed that PAM would seek to purchase BP and Freelance Banks for US$4.5 million and US$4 million respectively and that Mr Then would assist as a lawyer employed by Walkers in respect of the legal aspects of the acquisition but would also invest in his personal capacity for a 15% share;
(f) that Mr Ling informed Mr Then that 5&2 was an affiliate of PAM.
Denials by Mr Then
38 The primary denials made by Mr Then relate to Mr Ling’s claims that he did not have knowledge of various matters. Mr Then contends that Mr Ling was at all times aware that Walkers had no relationship with or control over WPS and that Mr Then managed WPS and used it as his personal vehicle. He further contends that Freelance Bank was purchased in November 2018 for US$4 million and that Mr Ling was at all times aware that Freelance Bank was exchanged for Royal Eastern Bank. Mr Then relies on a Statutory Declaration sworn by Mr Ling on 14 June 2019 (“Statutory Declaration”) to support the fact that Mr Ling was aware that WPS was Mr Then’s personal vehicle.
Positive assertions made by Mr Then
39 There are two primary positive assertions made by Mr Then. The first relates to the ownership of Royal Eastern Bank by Gestalt. Whilst Mr Then avers that Royal Eastern Bank is wholly owned by Gestalt and not by Star Dust, he asserts that Gestalt holds its shares on trust for Star Dust. The second relates to Mr Then’s dealings with the Remaining Sums which he asserts were loaned to Mr Gaillard with Mr Ling’s knowledge. Mr Then also asserts that Mr Ling agreed that no steps would be taken to recover the funds from WPS or Mr Then pending the repayment of the loan by Mr Gaillard.
The Reply
40 The following pleas in the Reply should be noted:
(a) The Plaintiffs admit that Mr Ling signed the Statutory Declaration but claims that it contained materially false statements “concocted by Mr Then” and that following the taking of legal advice, Mr Ling had asked Mr Then to destroy it and assumed that it had been destroyed.
(b) Mr Then always represented that he was acting in his capacity as a Walkers’ solicitor and had never stated that he was acting in a personal capacity save in respect of his 15% investment.
(c) The Plaintiffs never knew that Mr Then had exchanged Freelance Bank for Royal Eastern Bank.
(d) The business of Royal Eastern Bank has not been able to progress due to the misappropriation of the Remaining Sums.
(e) The Plaintiffs had never given permission for Mr Then to loan their funds to Mr Gaillard.
Deceit
The Law
41 I propose to consider first the cause of action in deceit. There is no dispute as to the essential elements of that cause of action. Both parties referred me to the decision of the Court of Appeal in Panatron Pte Ltd and another v Lee Cheow Lee and another [2001] 2 SLR (R) 435 at [13]–[14] where the law was stated to be as follows:
13 The law as regards fraudulent representation is clear. Since the case of Pasley v Freeman (1789) 3 TR 51, it has been settled that a person can be held liable in tort to another, if he knowingly or recklessly makes a false statement to that other with the intent that it would be acted upon, and that other does act upon it and suffers damage. This came to be known as the tort of deceit. In Derry v Peek (1889) 14 [AC] 337 the tort was further developed. It was held that in an action of deceit the plaintiff must prove actual fraud. This fraud is proved only when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
14 The essentials of this tort have been set out by Lord Maugham in Bradford Building Society v Borders [1941] 2 All ER 205. Basically there are the following essential elements. First, there must be a representation of fact made by words or conduct. Second, the representation must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which includes the plaintiff. Third, it must be proved that the plaintiff had acted upon the false statement. Fourth, it must be proved that the plaintiff suffered damage by so doing. Fifth, the representation must be made with knowledge that it is false; it must be wilfully false, or at least made in the absence of any genuine belief that it is true.
[Emphasis added in bold]
42 I shall therefore turn to the facts in relation to these essential elements, on each of which the Plaintiffs have to establish the necessary prima facie case.
The Facts
43 Evidence was given on behalf of the Plaintiffs by Mr Ling and Mr Gaillard. The major part of the evidence was given by Mr Ling and I shall focus on this. I shall consider Mr Gaillard’s evidence and the weight that can be attached to it at the appropriate place.
44 Mr Ling is, as indicated above, the managing partner of PAM and a director of 5&2. Both companies provide investment management and consultancy services with Mr Ling as their representative. In 2017, Mr Ling was looking for companies to provide escrow services for business deals.
45 He was first introduced to Mr Then by a mutual friend in late 2017 and first met Mr Then in February 2018. Mr Then was introduced to him as being a solicitor in Walkers and Mr Then “told [Mr Ling that] he could arrange for Walkers to provide transactional support and escrow services for business deals”.
46 Hence began the relationship between Mr Then and Mr Ling which led to the matters in dispute in this action and they became personal friends.
47 Mr Ling was cross examined at length on his AEIC both by Mr Tan, then counsel for Mr Then, and by Mr Then himself. During the course of this, he remained focused and was clear and consistent in the answers he gave. There were aspects of his evidence in relation to his actions subsequent to the time when he contends that he first became aware of the fact that WPS was not controlled by Walkers, where he accepted that he had lied to his investors, but gave reasons for doing so. I shall have to take this into account when assessing the weight to be attached to the evidence which is central to the case. The fact that a witness lies when involved in commerce for what he considers to be commercially sound reasons, does not mean that he will also lie on oath. It does, however, mean that an element of caution must be applied in assessing that evidence and that particular notice should be taken of relevant contemporaneous documents which relate to that evidence.
48 Overall, however, Mr Ling struck me as a man who was acutely embarrassed as to the position in which he and his investors found themselves, but who was trying to assist the court; not a man who was seeking to mislead the court through what would have to be a pack of lies. In many respects, the contemporaneous documents support the thrust of his evidence.
49 In his Supplementary Written Closing submissions, Mr Then drew attention to the fact that in giving judgment in HC/SUM 6207/2019 which was an application for a Mareva injunction in Suit 5 (before it was transferred to the SICC), Audrey Lim J held that the Plaintiffs in Suit 5 had established a prima facie case that Mr Ling, the 2nd Defendant in that action, was liable to the Plaintiffs in deceit and that, in doing so, she had questioned the veracity of some of Mr Ling’s evidence (see The Micro Tellers Network Ltd and others v Cheng Yi Han and others [2020] SGHC 130 (“the Mareva judgment”)). Mr Then submits that this casts grave doubts on Mr Ling’s lack of probity and veracity. However, that application was based on affidavit evidence only without cross-examination. Furthermore, at [35] of the Mareva judgment Lim J referred to the fact that Mr Ling sought to pin all the blame on Mr Then when she said:
35. In conclusion, I found there to be a good arguable case for P1’s claim for fraudulent misrepresentation against the Defendants. Whilst D1 and D2 (Mr Ling) have attempted to pin all the blame on Feng (Mr Then), this did not change my analysis. At this stage, the court has only to consider if the plaintiff has a good arguable case on the merits of its claim. It bears noting that Feng’s version of events (set out in Suit 653) (i.e. this action) contradicted material allegations of D1 and D2. He alleged that D3 (and D2) knew that WPS was his personal vehicle and that his investment in the Bank Acquisition was in his personal capacity; and that D3 knew and had agreed to Comoros Bank (or REB) being returned to the seller who would provide Feng and D3 with another entity of a similar name to REB. Therefore, whether Feng did or did not defraud the Defendants is a live issue.
50 As can be seen, the Judge identified that in HC/S 653/2019 (which was later transferred to SICC as this action) Mr Ling’s and Mr Then’s version of events differ and it is that difference that caused Her Honour to question the veracity of Mr Ling’s evidence. In these circumstances, it would be inappropriate for me to place any weight on her concerns. I have to reach conclusions on the weight to be attached to Mr Ling’s evidence on the basis of the evidence given at this trial.
The WPS Representation
51 It is convenient to consider first the facts relating to WPS. The cornerstone of the Plaintiffs’ case is that Mr Then falsely represented that WPS was a company owned and controlled by Walkers which would hold money in escrow to the Plaintiffs’ order. This was relied upon by Mr Ling. Had he known it was false then the Plaintiffs would not have placed money in WPS’ bank account. Mr Then, on the other hand, contends that Mr Ling was at all times aware that WPS was Mr Then’s vehicle and that no false representation was made.
52 I shall consider first the evidence given by Mr Ling in his AEIC and the cross-examination in relation to it. Thereafter, I shall consider the other matters relied upon by Mr Then as calling into question the reliance that can be placed upon Mr Ling’s evidence.
53 Mr Ling attested that following the initial meeting in February 2018, Mr Then told him that Walkers could provide escrow services to support their legal transactional practice. This aspect of Mr Ling’s evidence was challenged in cross-examination:
Q. Now, after you got acquainted with Mr Then Feng, you had previously asked if Walkers Singapore could assist the 1st plaintiff to review contractual documents for Bitcoin transactions; correct?
A. I asked Walkers -- if Walkers Singapore could represent me for an escrow service for my Bitcoin transaction deals.
Q. And you had provided Walkers Singapore with copies of the 1st plaintiff's certificate of incorporation, memorandum of articles of association, register of members and register of directors, and certificate of incumbency; correct?
A. Yes.
Q. My instructions is that you had also represented to my client that the 1st plaintiff was transacting US$5 million per day. Do you agree or disagree? That's what you told my client?
A. Yes, we were -- we were expecting potential transactions of $5 million a day. I did tell him that. I expected potential transactions.
Q. My client's instructions to me is that while the 1st plaintiff would engage Walkers Singapore for legal advice for its transactions, my client would assist the 1st plaintiff, in his personal capacity, on non-legal matters and the provision of services that Walkers Singapore did not provide. Do you agree with this statement?
A. … I disagree completely. At all times, Mr Feng [T]hen was Walkers -- was representing Walkers Singapore, the law firm.
[Q]: My client's instructions are that, at all times, you know that Walkers Professional Services was separate and distinct from Walkers Singapore, and Walkers Singapore had no relationship with or control over WPS.
A. No, that's completely false. There are so many instances that has -- that made me believe that Walkers Professional Services is basically Walkers Singapore, the law firm. Very much -- a lot of it is in my AEIC already, statements from Walkers Professional Services with the Walkers logo, his name card, his reply from his Walkers Global email, just to name a few.
54 In support of his position, Mr Ling exhibited an extract from a WhatsApp chat between him and Mr Then dated 9 March 2018 in which Mr Then indicated that “we” have a USD account in Singapore, in response to a request from Mr Ling: “Hi Feng, sg acc for escrow accepts usd?”. Later in the exchange, Mr Then identified the account as being in the name of WPS and gave the account details following which he said “I have one off clearance to facilitate this for you”. Mr Ling suggests that this is consistent, and consistent only, with a representation that the account was controlled by Walkers (hence the need for clearance) and that any moneys paid into the account would be held in escrow. The answers which Mr Ling gave in cross-examination are consistent with the WhatsApp chat extract. Mr Ling ends this part of the cross-examination by saying:
… Thirdly, if I had known that Feng was representing in his own personal capacity, like I said, only banks, law firms, or custodians have their licence to do escrow services, and the insurance, for that matter, to do that, to provide that service, I would have asked Feng what nonsense is going on. Obviously, when I mentioned Feng here, in many other instances, not just -- not just this sentence, it's just that Feng was our lawyer from Walkers, representing Walkers. He is my lawyer from Walkers, and that's what I meant by "Feng".
55 On 21 March 2018, Mr Ling emailed Mr Then some documents relating to PAM which Mr Then had requested, and Mr Ling understood that they were required for due diligence checks. The e-mail was sent to feng.then@walkersglobal.com.
56 It was following this that the issue of purchasing an offshore bank arose. Mr Ling explained that the reason why he wanted to purchase an offshore bank was because he wanted to set up a cryptocurrency friendly bank in Singapore. He and some business partners, Mr Shawn Lin and Mr Cheng, proposed that they would raise money for this venture and Mr Then indicated that he would be interested in being an investor.
57 Mr Ling understood that Walkers would act as their lawyers for the venture, with Mr Then representing them in his capacity as a solicitor at Walkers. Mr Ling’s understanding was reinforced by an e-mail dated 16 April 2018 from Mr Then again using the e-mail address feng.then@walkersglobal.com, which was signed as follows:
58 Mr Ling attests that the reference to Walkers and its Singapore address, the naming of Mr Then’s secretary and the “WALKERS’ DISCLAIMER” reinforced his belief that “Walkers were my lawyers”.
59 Mr Ling was cross-examined on Mr Then’s position that Mr Ling was aware that Mr Then acted in two capacities: first as a lawyer for Walkers; and second in a personal capacity where he used WPS. Mr Ling rejected this suggestion:
Q. My instructions are that Mr Then Feng had dealt with you in different capacities; namely, his capacity when he deals with you as a lawyer from Walkers Singapore, but he has a separate capacity where he deals with you, for his personal capacity, where he uses WPS. Would you agree with that?
A. No, not completely, I wouldn't agree with that. Yes, he deals with me definitely as a lawyer from Walkers Singapore. Never did he ever say that he was a -- never did he ever say, prior to him admitting to me in 2019, that he would act in his personal capacity and using WPS as an escrow or receiving funds. The only other time I can recall he said that he act personally was as an investor to the bank that we were going to buy.
Q. My question is: my client's case is that in that extract of the WhatsApp chat in paragraph 8 of your AEIC, he was dealing with you in his capacity for WPS and not Walkers Singapore.
A. Absolutely not. First, let's look at the date of the extract. It's March 2018. At this point of time, I know Mr Feng then as a lawyer with Walkers, providing me escrow services. Nowhere in this extract or in this chat does he explicitly say, I am a separate entity with a company that suspiciously looks exactly like Walkers global law firm. In fact, when he provided me the name, "Walkers", if you can see my extract of the chat here, 9 March 2018, at 14:52, Feng then says: "Account Name: WALKERS PROFESSIONAL SERVICES LIMITED" I went to Google that to make sure. And guess what, if you Google today, I don't know about today, but I think two or three days ago when I Google it, it is there, Walkers -- the law firm's website, and Walkers Professional Services is in the same site. So I had no reason, even with a chat, to know that WPS is a separate entity, or whatever that Feng said, because he never said it.
Q. Nowhere in this extract on a WhatsApp chat did Mr Then Feng say that this WPS account belongs to Walkers; right? Do you agree?
A. … Yes, that's true, nowhere in this chat does he explicitly say Walkers Professional Services is from Walkers, the law firm, but it didn't need to. In the first place, 9 March, I already been working with him for so many -- for at least a month before that already, and we always been discussing about it being an escrow that Walkers provide. This chat further reinforces my belief that Walkers is working for me because Walkers Professional Services is there. It didn't need him to say, just like I didn't need Daniel to say that, "Pay Morgan Lewis", for example, to a Morgan Lewis account, because it's the Walkers Professional Services Limited. And if I were to pay that bank account, it would be paid to Walkers Professional Services Limited, and if you Google that, it's also the law firm, Walkers Global law firm. So I don't think he needs to tell me because he was my lawyer from a prestigious law firm. So while I agree with your statement, I think the context is completely off.
60 Mr Ling also attested that a due diligence report sent to him by Mr Then bore Walkers’ corporate logo, and this reinforced his belief that he was represented by Walkers:
61 Mr Ling stated that in order to move matters further, on 23 April 2018, PAM transferred US$2,948,000 to the WPS bank account. Matters then progressed with further e-mails from Mr Then’s Walkers’ e-mail address. On 25 June 2018, Mr Then sent Mr Ling an invoice for work done by Walkers in setting up a US company. This is an important document as, on its face, it ties Walkers in with WPS:
62 Mr Then challenged the authenticity of this invoice when it was disclosed during discovery. In his AEIC, Mr Ling explains that he had obtained this invoice from Mr Then and exhibited a screenshot taken on his phone which shows that Mr Then had sent him the invoice on WhatsApp at 10.17am on 25 June 2018. Mr Ling was not challenged on the issue of the authenticity of the invoice during cross-examination.
63 However, in cross-examination, it was suggested to Mr Ling that Mr Then was dealing with the Plaintiffs in a personal capacity when setting up the US company. Again, Mr Ling rejected this and gave reasons for doing so.
64 Mr Ling attested that on 3 August 2018, when he was making preparations for commencing the banking business, he asked Mr Then if he could use WPS’ Singapore address as a temporary service address to be listed on the bank’s namecards to which Mr Then responded: “Let me check and get a response overnight”. Mr Ling attested that he understood this to mean that Mr Then was consulting Walkers for permission. In cross-examination, it was put to Mr Ling that he understood that Mr Then was acting in a personal capacity at this time, but he roundly rejected this suggestion.
65 Mr Ling further stated that on 8 August 2018, he sought confirmation from Mr Then that the purchase of BP Bank was imminent, so that he could show the confirmation to his investors in order that funds could be deposited into a Walkers’ trust account. In response, Mr Then suggested that it “Will be good to have it on firm letterhead yes?”. Mr Ling replied “yes, most imp[ortan]t is call for funds to walkers trust acc[ount]” [sic]. Again, Mr Ling attested that he took this as confirmation that Walkers was representing the plaintiffs.
66 Mr Ling next stated that on 25 September 2018, he again sought confirmation that WPS’ address could be used on the proposed bank’s namecards to which Mr Then responded “Yes bro I think should be fine. Walkers (Singapore) LLP 3 Church Street [XXXXXXXXXX]”.
67 On 10 October 2018, Mr Ling caused 5&2 to transfer US$2,200,000 to the WPS bank account but before doing so, asked Mr Then to confirm the bank details. In response, Mr Then sent the details of the WPS bank account with the comment “You don’t want it to go to the wrong place”. Mr Ling then advised Mr Then that the money had been transferred to which Mr Then replied “Thanks bro I’ll advise accounts accordingly”, which Mr Ling states that he understood to be a representation that the WPS account was a trust account controlled by Walker. Again, in cross-examination, Mr Ling rejected the suggestion that Mr Then was acting in his personal capacity.
68 Mr Ling attested that thereafter further sums were deposited in the account and that Mr Then repeated his reference to the involvement of “accounts”.
69 Finally, Mr Ling exhibited a document entitled Account - Client Summary which he claims was sent to him by Mr Then in late October 2018. This document is reproduced here:
70 As can be seen, this document contains the Walkers logo, refers to the beneficiary as PAM and to the fact that it is an escrow client account and that the moneys were held on account for acquisition purposes. Mr Ling relies on these details as confirming his belief that Walkers was holding the moneys stated in escrow with PAM as the beneficial owner. He was not cross-examined directly on this document but Mr Ling referred to it in the course of his answers to a different question relating to the sum of S$573,300, referred to below at [72].
71 This passage of his cross-examination concluded:
… And you'll see below the escrow amount of US$9.5 million to be held on acquisition purposes. I will explain later why. I think 9.5 million is a typo or it could be a reference to the term sheet that was previously sent. Because of this, I wholeheartedly believe that all the monies were in Walkers, the law firm's account, after I have transferred on four separate occasions to a Walkers Professional Services Limited DBS account.
72 Mr Ling gave evidence that he then arranged for the transfer of a further sum of S$573,000 to the WPS account on 2 November 2018 and that, in total, the Plaintiffs had transferred US$5,268,000 and S$1,223,000 to WPS (the Sums). Mr Ling stated that sometime later that month, Mr Then told him that the purchase of Freelance Bank had been completed for US$4 million. Thereafter, Mr Then advised him that they should discontinue attempts to purchase BP Bank as that was no longer necessary. When Mr Ling was cross-examined in relation to this, his attention was drawn to the fact that the Credit/Debit advice contained reference to the address of WPS as being Mr Then’s home address and not that of Walkers’ Singapore office. It was suggested that this would have alerted the reader to the fact that WPS was Mr Then’s vehicle and not related to Walkers. Mr Ling gave evidence that he: “never saw the address in such detail. If [he] did [he] would have raised the red flags”.
73 The cross-examination in relation to those paragraphs of the AEIC concluded with the following exchange:
MR TAN HJ: Now, Mr Ling, I have earlier shown you those various parts of your affidavits where I had put my client's case to you that those were actually instances where he dealt with you in his personal capacity, and you disagreed; right?
A. Yes.
Q. And you would also agree with me that there's nothing explicit in those extracts where he said WPS belonged or was owned by Walkers Singapore; right?
A. Yes, nothing explicitly said, and I maintain that he didn't need to.
74 Thereupon, Mr Ling sought to have the Remaining Sums which he believed remained in the WPS account remitted to him. Between 6 and 9 December 2018, there was a WhatsApp exchange between Mr Ling and Mr Then which on its face demonstrates a request for Mr Then to: “drop a message to walkers? still no sign of the funds” followed by two further reminders each referring to “Walkers” which resulted on 9 December 2018 with a message from Mr Then which stated “Escrow release done”.
75 However, no money was transferred and matters progressed without payment until February 2019. Mr Ling deposes that on 17 February 2019, Mr Then asked to meet him at Changi airport before Mr Ling was due to take a flight out of Singapore. At this meeting, for the very first time, Mr Then admitted to Mr Ling that WPS was his own personal vehicle and that it was not affiliated with or controlled by Walkers. This meeting was the subject of an extensive piece of cross-examination. There was no dispute that the meeting took place and that Mr Then made the admission about WPS. The substance of Mr Ling’s answers in cross-examination was that Mr Then had represented to him that the Remaining Sums were safe and had requested him not to tell his fellow investors about this so as not to jeopardise the relationship with them. Mr Ling had agreed, provided that the money was remitted to him before he returned from his business trip, as he did not want to jeopardise the return of the Remaining Sums, and he was seeking to repress his feelings of shock, anger and embarrassment about the admission that Mr Then had made about WPS.
76 However, the money was not repaid, and Mr Ling gave evidence that although he was angry and embarrassed, he decided to work with Mr Then so as to do his utmost to have the Remaining Sums restored to him. I do not propose to enter into too much detail of what passed between Mr Then and Mr Ling and between Mr Ling and his co-investors between February and June 2019. In essence, a number of schemes were proposed by Mr Then to arrange for repayment, some involving Mr Gaillard. Mr Ling accepted that during this time, he knew that a fraud had been perpetrated, yet, he did not file a police report until June or July 2019, and in the meantime, he told lies to his co-investors on a number of occasions.
77 These are factors which do not reflect well upon Mr Ling and it was clear when he was in the witness box that he considered that, with hindsight, he should have acted differently. He was overly trusting of Mr Then whom he regarded as a friend and showed business naivety in the latitude and support he gave Mr Then. But the issue I have to decide is whether Mr Then made the representations that are alleged with regard to WPS and whether Mr Ling acted upon those representations or whether, in truth, Mr Ling was at all times aware that WPS was Mr Then’s vehicle and that he knew that Mr Then held the funds in the WPS bank account to his order and not in escrow. The details of what happened in the period between February and June 2019 do not throw any light on this save that Mr Ling has “no qualms to tell lies to further his interests”. This, I accept, does impact upon his credibility as a witness and, taken in isolation, does give a measure of support to the assertion that he was lying because, at all times, he knew that WPS was Mr Then’s vehicle.
78 In his written closing submissions, Mr Then primarily relied and relied heavily on the Statutory Declaration (see [38] above) as demonstrating that Mr Ling was at all times aware that WPS was Mr Then’s vehicle and had nothing to do with Walkers.
79 Mr Ling does not dispute that he signed the Statutory Declaration (see [40(a)] above). It is contained in his AEIC and I now set it out in full: