1 HC/OC 381/2023 (“OC 381”), HC/OC 382/2023 (“OC 382”), and HC/OC 201/2024 (“OC 201”) are three informally consolidated originating claims which arise from various loans made by the late Tan Thuan Teck (“TTT”). Collectively, the defendants comprise (i) four brothers (“Brothers”) – Tan Cheong Joo (“TCJ”), Tan Seong Kok (“TSK”), Tan Siong Tiew (“TST”), and Tan Siong Lim (“TSL”); and (ii) Fong Tat Holding Co Pte Ltd (“Fong Tat Holding”), a company in which the Brothers are directors and/or shareholders. The Brothers or some of them were borrowers under various loans extended by TTT, while TSK and Fong Tat Holding were each a guarantor of one of the loans. The claimants are sons of TTT and the co-executors of TTT’s estate, who have brought these actions against the defendants to recover outstanding amounts which they say remain due to TTT under the said loans.

2 The defendants do not contest that the loan agreements were entered into, that the loan amounts were disbursed, or that the amounts claimed are, per se, owed. Their primary and common defence is that the amounts outstanding are not recoverable under s 19(3) of the Moneylenders Act 2008 (2020 Rev Ed) because the loans were made by TTT as part of an unlicensed moneylending business (the “Moneylending Defence”). For clarity, the corresponding provision applicable at the time of the loans would be s 14(2) of the Moneylenders Act (Cap 188, 2010 Rev Ed). As there is no material difference between the relevant provisions applicable to this dispute, for convenience, I will refer to both editions here generally as the “MLA”. Where required however, I will refer to the Moneylenders Act 2008 (2020 Rev Ed) as the “MLA (2020 Rev Ed)” and the Moneylenders Act (Cap 188, 2010 Rev Ed) as the “MLA (2010 Rev Ed)”.

3 There was also a further secondary defence raised by TCJ that TTT had, following a telephone conversation between himself and TTT, agreed to waive the interest payable on a loan extended to TCJ (the “Waiver Defence”).

4 For the reasons that follow, I find that the Moneylending Defence fails, primarily because the defendants have failed to discharge their burden of proving that TTT was not an “excluded moneylender” within the meaning of the MLA. I also find that on the evidence, the Waiver Defence fails. The result is that the claimants’ claims succeed, and they are accordingly entitled to judgment against the defendants in all three actions.

5 In his lifetime, TTT was a businessman who, in the claimants’ words, “founded and ran an empire of construction-related companies called the Ho Lee Group”. ¹

6 Together with Tan Siong Sing (“TSS”), a fifth brother who is not involved in these proceedings, the Brothers are equal shareholders (through their respective holding companies) of a company known as Fong Tat Group Pte Ltd (“Fong Tat Group”). ² The Brothers are also equal shareholders of Fong Tat Holding, the fifth defendant in OC 201. ³ Other companies relevant to these proceedings are 02 Sensor New Technology Group Pte Ltd (“02 Sensor”), which is wholly-owned by TSS, ⁴ and Ideal Auto Parts Pte Ltd (“IAPL”), which is co-owned by TCJ and TSK. ⁵

7 TTT was acquainted with the defendants via his relationship with TSK, the exact nature of which remains a matter of dispute between the parties. Nonetheless, it appears undisputed that both of them first met and came to know each other while serving on the Advisory Committee of Xinmin Secondary School, of which they are both alumni. ⁶

8 Beginning sometime in 2009 and lasting till 2018, various loans were extended to the Brothers and/or related companies in which they were directors and/or shareholders (including entities controlled by TSS). These loans were granted either by Ho Lee Development Pte Ltd (“HLD”), a company in the Ho Lee Group, or by TTT personally. The loans are largely undisputed and are set out in the following table, which has been adapted from a similar table provided in the claimants’ closing submissions: ⁷

9 OC 201, OC 381, and OC 382 are in respect of the 2016 FTH Directors Loan, the 2018 TCJ Loan, and the 2018 TSK Loan, respectively (the “Relevant Loans”). ⁸ It should also be noted that the 2009 Loan and the 02 Sensor 2012 Loan are loans from HLD and so strictly speaking should not be considered in any analysis as to whether TTT was an unlicensed moneylender.

10 The parties’ overall arguments can be stated simply. The defendants take the position that TTT was an unlicensed moneylender and the Relevant Loans are thus unenforceable as illegal moneylending agreements (ie, the Moneylending Defence). ⁹ In respect of OC 381, the defendants also allege that during a telephone call on 15 April 2020 between TCJ and TTT, TTT had verbally agreed to “forgive and not charge any interest to the [d]efendants” in respect of the 2018 TCJ Loan (ie, the Waiver Defence). ¹⁰

11 In response, the claimants’ position is that (a) TTT was an “excluded moneylender” under the MLA because he “only lent money to corporations and accredited investors”; ¹¹ and in any event (b) TTT was not an unlicensed moneylender because he was not in the business of moneylending. ¹² As to the alleged Waiver Defence, the claimants submit that TTT did not grant such a waiver. Even if he did, the waiver is unenforceable for lack of consideration. ¹³

12 Based on the parties’ pleadings and closing submissions, three issues arise for my determination:

(a) first, whether TTT was an “excluded moneylender” within the meaning of the MLA;

(b) second, if TTT was not an “excluded moneylender”, whether TTT carried on the business of moneylending; and

(c) third, assuming that the loans are enforceable, whether TTT had nonetheless granted a waiver of interest in respect of the 2018 TCJ Loan.

13 In my view, it is appropriate to begin the analysis with the first issue because it is a threshold issue. It is a threshold issue because, as explained by the Court of Appeal, the “entire scheme of the MLA does not apply to an excluded moneylender”: Sheagar s/o T M Veloo v Belfield International (Hong Kong) Ltd [2014] 3 SLR 524 (“Sheagar”) at [57]. Thus, if TTT is found to be an “excluded moneylender”, the MLA would be entirely inapplicable to any of the Relevant Loans and thus, it would in turn be irrelevant whether TTT did in fact carry on the business of moneylending or not.

14 For the first issue, the sole question with which I am concerned is whether TTT was an excluded moneylender by virtue of him lending money solely to accredited investors. While the claimants initially took the position in their pleadings that another ground on which TTT may be an excluded moneylender is because he only lent money to corporations (see above at [11]), that ground can no longer apply as it is undisputed that TTT did also lend money to individuals. In any case, in their closing submissions, the claimants have only focused on the “accredited investor” exception, and it can thus be taken that they are no longer advancing a case based on TTT only lending money to corporations.

15 The applicable provision in s 2 of the MLA is reproduced here for reference:

16 The applicable version of the Securities and Futures Act at the time of the last Relevant Loan on 28 September 2018 (ie, the 2018 TCJ Loan) was the Securities and Futures Act (Cap 289, 2006 Rev Ed) (“SFA (2006 Rev Ed)”). Section 4A of the SFA (2006 Rev Ed) provides:

17 Section 4A in the present version of the SFA, namely the Securities and Futures Act 2001 (2020 Rev Ed) (“SFA (2020 Rev Ed)”) is significantly longer:

18 For present purposes, there are two notable differences between s 4A of the SFA (2006 Rev Ed), that was applicable at the time of the Relevant Loans, and the current SFA (2020 Rev Ed):

(a) First, under the SFA (2006 Rev Ed), an individual qualifies as an accredited investor if he or she satisfies either of two requirements:

(i) he/she has net personal assets exceeding $2 million (the “Personal Assets Requirement”); or

(ii) his/her income in the preceding 12 months exceeds $300,000 (the “Income Requirement”).

A third pathway for qualification was subsequently introduced and came into effect on 8 October 2018 and is reflected in the SFA (2020 Rev Ed)) – under this pathway, a person is an accredited investor if he/she has net financial assets exceeding $1 million (the “Financial Assets Requirement”). However, since this additional pathway was not present in the SFA (2006 Rev Ed) at the time of the Relevant Loans, it is not relevant to my assessment of the Brothers’ status as accredited investors.

(b) Second, under the SFA (2006 Rev Ed), there was no restriction on how much of the $2 million threshold under the Personal Assets Requirement could be attributed to the value of a primary residence. In contrast, the SFA (2020 Rev Ed) contains s 4A(1A), which caps the value of a personal residence that can count towards satisfying the Personal Assets Requirement at $1 million (the “Personal Residence Value Limit”). This provision also only took effect on 8 October 2018, after all the Relevant Loans had been granted. Therefore, it is also not relevant to my assessment of whether the Brothers were accredited investors. At the risk of stating the obvious, the effect of this is that under the applicable SFA (2006 Rev Ed), it was possible for any of the Brothers to be considered an accredited investor solely from owning a personal residence worth $2 million or more. The relevance and significance of this will become apparent later in my analysis.

19 For completeness, I note that the requirement to establish that a corporation is an accredited investor remains the same – ie, showing that the corporation has net assets exceeding $10 million in value.

20 Before entering into the analysis proper, I make some observations on the appropriate scope of assessment.

21 Both the claimants and the defendants appear to have taken the position that TTT would qualify as an “excluded moneylender” under the MLA if the Brothers (only) are found to be accredited investors. ¹⁴ I do not think this is technically correct as a matter of law. The MLA requires me to consider whether TTT lent money solely to accredited investors, be they individuals or corporate entities. The evidence before me (see above at [8]) suggests that in addition to the Brothers, TTT had also lent money to 02 Sensor and IAPL. Accordingly, my view is that TTT will only be considered an “excluded moneylender” within the meaning of the MLA if the Brothers, as well as 02 Sensor and IAPL (collectively, “Relevant Borrowers”) were accredited investors at the time of the respective loans. This remains the case even though none of the loans extended by TTT to 02 Sensor and IAPL are the subject of the present dispute.

22 For completeness, I also note that:

(a) there is nothing before me to suggest that TTT had granted loans beyond what has been tabulated above at [8]; and

(b) while Fong Tat Holding is the fifth defendant in OC 201, it is only liable as a guarantor under the 2016 FTH Directors Loan and did not otherwise borrow from TTT (see above at [9]) – as such, it is unnecessary to consider whether Fong Tat Holding was also an accredited investor at the material time.

23 Due to the way in which the evidence and arguments panned out, it is clear that central to this dispute is the question of burden of proof. In particular, who bears the burden of proving whether a lender is or is not an “excluded moneylender” and whether a borrower is or is not an “accredited investor”. Indeed, on the last day of the trial, I requested that the parties pay particular attention to this issue of burden of proof in their closing submissions. ¹⁵

24 I therefore consider it useful to begin with a discussion on (a) which party bears the burden of proving that TTT was not an excluded moneylender; and (b) which party bears the burden of proving that the Relevant Borrowers were not accredited investors.

25 The claimants submit that the defendants bear the legal burden of proving that TTT was not an excluded moneylender, and they have failed to discharge this burden because they have “adduced insufficient evidence”. ¹⁶ The leading authority is Sheagar, where the court held that “if there is an issue as to whether the lender is an excluded moneylender, the legal burden of proving that he is not will fall on the borrower”: Sheagar at [75(d)]. ¹⁷ In particular, the claimants highlight certain excerpts from Sheagar at [74]. I reproduce the relevant paragraph in full: ¹⁸

26 The defendants’ submissions are, on the other hand, marred by several glaring issues. I have made some observations on this below (from [94] onwards), but for present purposes, I shall endeavour to tease out the arguments which I think the defendants are attempting to make.

27 Notwithstanding that the defendants also cite the same passages in Sheagar on the burden of proof, ¹⁹ their contention appears to be that the claimants (standing in the shoes of TTT as the lender) bears the burden of proving that the Relevant Borrowers were accredited investors at the material time. ²⁰ Their arguments may be summarised as follows:

(a) The default position under the Evidence Act is to place the burden of proving any particular fact on the person who asserts it. Because the claimants are asserting that the Brothers were accredited investors, they bear the burden of proving so. ²¹

(b) The claimants could have but failed to “apply for discovery or further and better particulars”, which would have enabled them to “compel fuller disclosure”. ²² As they have failed to do so, the claimants cannot now complain about insufficient disclosures by the defendants. In its closing submissions, the defendants cited two “authorities” to make this point. ²³ I have referred to them in quotation marks for a reason. At present, it suffices for me to note that in their reply submissions, the claimants brought to my attention the possibility that these two “authorities” did not exist (“Claimants’ Allegations”). ²⁴ I myself am unable to locate these “authorities”, and so I find myself in agreement that they likely do not exist and have accordingly disregarded them. I will have more to say about this at the end of my judgment.

(c) The defendants also argue that Sheagar itself contemplates the lender having to establish the borrower’s accredited investor status “by the straightforward administration of interrogatories or discovery”: Sheagar at [74]. ²⁵

(d) Lastly, there is some suggestion that to place the burden on the borrower(s) would be procedurally unfair and would require the defendants to “self-incriminat[e]”, ²⁶ because by proving that they are wealthy enough to be accredited investors, the defendants will then be “liable for the debt”. ²⁷

28 In reply, the claimants stress that Sheagar is clear authority that the legal burden of proof is on the borrower. ²⁸ There is “nothing in Sheagar suggesting that the borrower’s legal burden is displaced and/or subject to the lender first seeking discovery” [emphasis in original removed]. ²⁹ It could not be that the claimants had to apply for the production of documents which the defendants could easily obtain and which would enable them to “discharge their own legal burden” [emphasis in original removed]. ³⁰

29 Additionally, there is no such thing as privilege from self-incrimination in the context of civil liability – to adopt this logic would mean that every order for production of documents would effectively be forcing someone to self-incriminate if the documents would expose that person to the very claim being defended. ³¹ An adverse inference should thus be drawn against the defendants for their lack of disclosure, ³² and even if the evidential burden had at some point shifted to the claimants, the claimants have done enough to shift it back to the defendants. ³³

30 I agree with the claimants that the legal burden of proof lies with the defendants as borrowers/guarantor to establish that the Brothers (or more accurately, the Relevant Borrowers) are not accredited investors.

31 It is useful to begin by looking at Sheagar as it is uncontroversial that it is the leading authority on the issue and both sides have relied on it extensively in their submissions. The appellant in Sheagar was liable as the guarantor of a loan granted by the respondent; the appellant raised, amongst others, a defence of illegality under the MLA to resist enforcement of the guarantee: Sheagar at [1]–[2]. One of the respondent’s arguments was that “even if it was a moneylender, it would fall within the definition of ‘excluded moneylender’ under s 2 of the MLA as it had lent money to corporations only”: Sheagar at [20].

32 The Court of Appeal undertook a detailed analysis of the relevant case law and statutory materials, and its conclusions as they relate to the burden of proof may be summarised as follows:

(a)  In order to rely on the disabling provision in s 19(3) of the MLA (2020 Rev Ed) (or s 14(2) of the MLA (2010 Rev Ed) as the case may be), the borrower must prove that the lender was an “unlicensed moneylender”: Sheagar at [75(a)].

(b) The borrower is assisted in discharging this burden by the statutory presumption found in s 3 of the MLA, which provides that “[a]ny person, other than an excluded moneylender, who lends a sum of money in consideration of a larger sum being repaid is presumed, until the contrary is proved, to be a moneylender”. Indeed, part of the definition of an “unlicensed moneylender” in s 2 of the MLA requires first establishing that the lender is subject to the presumption under s 3 of the MLA: see Sheagar at [32].

(c) A borrower can only rely on the presumption in s 3 of the MLA when it satisfies two conditions:

(i) First, the borrower must show that the lender falls “within the regulatory ambit of the MLA” in the first place: Sheagar at [72(a)–(b)].

(ii) Second, the borrower must then “establish that the lender has lent money in consideration for a higher sum being repaid”: Sheagar at [75(b)].

(d) In the context of an “excluded moneylender”, the Court of Appeal noted the significance of an “excluded moneylender” being expressly carved out from the presumption in s 3: Sheagar at [71]. An “excluded moneylender” cannot be presumed to be a moneylender under s 3 of the MLA, and consequently also cannot fall within the definition of an “unlicensed moneylender” in s 2 of the MLA: Sheagar at [33]. Additionally, it was “pertinent to note that the definition of a ‘moneylender’ in s 2 of the MLA contains an express exclusion in respect of an ‘excluded moneylender’”: Sheagar at [68]. Having regard to these reasons, the Court of Appeal was of the view that “the entire scheme of the MLA does not apply to an excluded moneylender”: Sheagar at [57].

(e) Therefore, where there is an issue as to whether the lender is an “excluded moneylender”, the burden of proving that the lender is not an “excluded moneylender” falls on the borrower: Sheagar at [73]. To elaborate, a borrower who wishes to rely on the presumption in s 3 of the MLA bears the legal burden of first proving all its constituent elements. This includes proving that the lender falls within the MLA’s regulatory ambit: see above at [32(c)(i)]. As an “excluded moneylender” falls outside of the MLA’s regulatory ambit, that a lender is not an excluded moneylender is a fact the borrower needs to satisfy before the presumption in s 3 of the MLA even becomes applicable.

33 Having regard to the preceding discussion, it is in my view unarguable that Sheagar stands for the proposition that the legal burden of proving that TTT was not an “excluded moneylender” lies on the defendants. I nonetheless turn to address some of the defendants’ other arguments.

34 To support their contention that the burden of proving a fact lies on the party asserting it, the defendants’ closing submissions referred to the following quote which was ostensibly taken from the “Evidence Act (Cap. 97), Section 103”: ³⁴

35 Section 103 of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”) actually states:

36 The quote in the defendants’ closing submissions is instead from s 105 of the Evidence Act, which is reproduced here in full:

37 As is self-evident from the portion I have italicised, the defendants’ quotation of s 105 suffers from a significant omission in that it omits a directly relevant qualification that the general rule is subject to any contrary provision by “law”. In this regard, “references in a statute to ‘law’ without the qualifier of ‘written’, would generally include the common law”: Mah Kiat Seng v Attorney-General [2022] 3 SLR 890 at [45]. The pronouncements in Sheagar on the burden of proof are such an example of a contrary provision by “law”, and which have been followed and applied in subsequent cases – see for example, Mface Pte Ltd v Chin Oi Ching [2024] SGHC 234 (“Mface”) at [50] and [63]. No convincing reason has been provided for me to depart from the clear guidance laid down in Sheagar that the legal burden of proving that a lender is not an excluded moneylender falls, not on the lender but on the borrower.

38 It is thus also incorrect for the defendants to characterise the claimants’ decision not to apply for discovery or further particulars as a “failure”. ³⁵ It is, in the first place, not the claimants’ duty to help the defendants discharge their own burden of proof – tactically, the claimants can decide to sit back and do nothing. As the onus is on the defendants, the failure to adduce material documents can only have the effect of jeopardising the defendants’ case on this issue. Additionally, no authority has been cited to me for the proposition that a failure by the opposing party to ask for discovery can somehow relieve a party of its duty to discharge its own legal and evidential burden of proof. I reiterate that I have disregarded the non-existent “authorities” cited by the defendants (see above at [27(b)]).

39 As for the reference in Sheagar to administering interrogatories or discovery, that statement needs to be read and understood in its proper context. For convenience, I again reproduce the entirety of [74] in Sheagar:

40 In my view, the Court of Appeal was trying to convey that placing the legal burden on the borrower would not be unreasonable because “[i]n most instances, the relevant information would be … capable of being established by the straightforward administration of interrogatories or discovery”. Read in context, the Court of Appeal was referring to the administration of interrogatories or discovery by the borrower as against the lender. Recourse by a borrower to these procedural tools might be required if, for example, the borrower needs to establish that the lender does not only lend to corporations, in which case the borrower may need to obtain details about the lender’s historical transactions – if those details are not forthcoming from the lender, the borrower can resort to “the straightforward administration of interrogatories or discovery”.

41 The final point raised about procedural fairness and self-incrimination is, in my view, a non-starter. I agree with the claimants that it would be illogical for any form of privilege against self-incrimination from civil (as opposed to criminal) liability to arise from being subject to an order for production of documents: see generally Debenho Pte Ltd v Envy Global Trading Pte Ltd [2022] SGHC 7 at [37]–[50]. If that were the case, documents containing admissions of a claimant’s claim could be withheld from disclosure or production by the defendant. This would be completely antithetical to the requirement to produce “all known adverse documents” found in the Rules of Court 2021 (see O 11 r 2(1)(b)). I would add that as regards these proceedings, there has been no mention of contemplated or concurrent criminal proceedings against the defendants.

42 With the exception of their general duties of disclosure under the Rules of Court or any specific document production ordered by the court, the defendants may, rightly or wrongly, choose to disclose nothing or be selective about the disclosures they make. It would simply be the case then that because the legal burden rests on their shoulders, the defendants would bear the risk that in running such a litigation strategy (ie, choosing either not to disclose anything or to be selective in their disclosures regarding their personal assets), the court would find that they have failed to discharge their legal burden of proof in establishing that the Relevant Borrowers were not, on the balance of probabilities, accredited investors.

43 To conclude this point, I find and hold that it is the defendants who bear the legal burden of proving that TTT was not an excluded moneylender, and by extension, the legal burden of proving that the Relevant Borrowers are not accredited investors. This latter point is of significance. Section 4A of the SFA (2006 Rev Ed) provides that an individual is an “accredited investor” if he/she fulfils either the Personal Assets Requirement or the Income Requirement (see above at [16] and [18(a)]). What this means for the defendants is that for the purposes of the Moneylending Defence, they bear the burden of proving that the Brothers do not satisfy both requirements in Section 4A of the SFA (2006 Rev Ed). Thus, if the defendants fail to prove that any one of the Brothers does not meet either the Personal Assets Requirement or the Income Requirement, that Brother will be considered an “accredited investor”. In the case of 02 Sensor and IAPL, the defendants bear the burden of establishing that these companies are also not accredited investors – ie, by showing that the net assets of each company at the material time did not exceed $10 million.

44 Before turning to the evidence, I consider it useful to contextualise my analysis by explaining how the legal burden of proof affects the evidential (or tactical) burden of proof.

45 The applicable principles have been clearly summarised in Ma Hongjin v SCP Holdings Pte Ltd [2021] 1 SLR 304 (“Ma Hongjin”) at [27]–[29]:

46  Simply stated, as the defendants bear the legal burden of proof, the evidential burden also begins with them. The defendants must take the initiative and lead sufficient evidence to shift the evidential burden to the claimants, who will then bear the burden of leading rebuttal evidence to shift the evidential burden back to the defendants.

47 On the evidence before me, I find that the defendants have failed to discharge their burden of proving that TTT was not an excluded moneylender.

48 There are two features of the defendants’ evidence which stood out for me:

(a) First, the evidence of each of the Brothers was substantially similar to the rest, and (in some instances) I would even go so far as to say, essentially identical; and

(b) Second, I found the defendants’ evidence opaque and lacking candour, leaving many gaps unfilled and questions unanswered. I was left with the overall impression that the defendants were withholding information that would have been material to my determination of the dispute and the Moneylending Defence they were advancing. My impression was reinforced by the fact that there were multiple attempts by the defendants to disclose newly “found” documents in the midst of their cross-examination. ³⁶

49 In the round, the defendants’ evidence was largely unhelpful to my assessment of the status of the Relevant Borrowers as accredited investors and fell far short. This has played a large part in my eventual conclusion that the defendants have failed to discharge their burden of proving otherwise. I will elaborate on this in more detail below, save to say that the general lack of initiative by the defendants to lead evidence disproving the Relevant Borrowers’ status as accredited investors meant that they are unable to shift the evidential burden of proof to the claimants – the result is that they are also unable to discharge their legal burden of proof (see above at [46]).

50 The following sections will canvass the evidence led by the defendants, as set out in their AEICs and at trial. Instead of separately summarising the plaintiffs’ evidence at a later stage, I will take an “issue-based” approach and discuss the plaintiffs’ evidence as it relates to a particular issue at the same time I discuss the defendants’ evidence.

51 02 Sensor and IAPL can be dealt with briefly. Quite simply, neither party appears to have contemplated that 02 Sensor and IAPL would also have to be accredited investors for TTT to be an excluded moneylender (see above at [21]). Consequently, whether 02 Sensor and IAPL were accredited investors at the material time of their loans is not a fact that appears in the defendants’ pleadings across any of the three suits. ³⁷ Considering that the defendants bear the burden of proving that 02 Sensor and IAPL were accredited investors, their failure to plead this fact, in and of itself, affords a sufficient basis for me to dispose of this issue in the claimants’ favour.

52 Even if I ignore the deficient pleadings, the defendants have also failed to adduce any evidence whatsoever in relation to the net assets of 02 Sensor and IAPL at the material times. The SFA provides that the net assets of a corporation are to be determined by having regard to either (a) the “most recent audited balance sheet” or (b) where audited accounts are not regularly required, a certified balance sheet of the corporation: s 4A(1)(a)(ii) of the SFA; see above at [16]–[17]). No such financial documents were disclosed by the defendants in respect of 02 Sensor and IAPL for the relevant period(s) of time when TTT granted loans to these companies (see table at [8] above). I further note that in the case of 02 Sensor, TSS, the sole shareholder, was also not called as a witness in these proceedings.

53 For these reasons, I find that the defendants have failed to discharge their burden of proving that 02 Sensor and IAPL were not accredited investors.

54 I turn now to consider the evidence as it relates to the individual Brothers in terms of the Personal Assets Requirement and the Income Requirement (see above at [43]).

55 On this requirement, the Brothers gave evidence as to the following categories of personal assets: (1) their residential properties; (2) shophouses they co-owned at Katong Shopping Centre; and (3) the value of cars they owned at the material time.

56 Their evidence on the value of their residential properties at the time of the Relevant Loans is summarised in the following table:

57 At the outset, I observe that on his own evidence, TCJ satisfies the Personal Assets Requirement. As I noted above at [18(b)], the Personal Residence Value Limit does not apply to the Relevant Loans as they were all entered into prior to the change in the law coming into effect on 8 October 2018. This point was raised by the claimants and was unchallenged by the defendants in their closing submissions. ⁴² Hence, the net equity in TCJ’s Matlock Rise property at the material time is sufficient on its own to satisfy the Personal Assets Requirement. On this basis alone, TCJ is an accredited investor and TTT would be an excluded moneylender as far as TCJ is concerned. ⁴³

58 I am also prepared to find that TST’s ownership of 23 Matlock Rise more likely than not made him an accredited investor as well. While TST has in his AEIC denied knowledge of the outstanding mortgage at the time, he volunteered evidence during the trial that the outstanding mortgage would have been “less than $4 million at that time”. ⁴⁴ The claimants contend that TST’s residence, which was adjacent to TCJ’s property (at 25 Matlock Rise), would have been valued at around a similar figure of $7.5 million. Consequently, even if TST’s outstanding mortgage amount was $4 million in 2016 at the time of the 2016 FTH Directors Loan, his net equity in the property alone would have exceeded $3 million. ⁴⁵ I agree that it is reasonable to use TCJ’s 25 Matlock Rise property as an analogue of the likely value of TST’s adjacent property at 23 Matlock Rise and consequently, the net equity in that property after deducting the outstanding mortgage – photographs were adduced in evidence which showed that both properties looked (at least externally) fairly similar. ⁴⁶ Further, TCJ and TST purchased the respective properties “together”. ⁴⁷ In the circumstances, the net equity value of 23 Matlock Rise would make TST an accredited investor as well. Even accounting for the possibility that TST might have underestimated the amount of his outstanding mortgage, realistically, I do not think his estimate would have been off by more than $1 million – thus, even if one assumed that TST’s outstanding mortgage at the material time was $5 million, the net equity in his property at the time of the loan in question would have been approximately $2.5 million, still well above the threshold of $2 million. In any case, the bare assertion that the Matlock Rise properties were heavily mortgaged would not have been sufficient to shift the evidential burden of proof to the claimants. In the absence of any evidence as to the actual values of the properties at the relevant time(s), I would also have found that TCJ and TST were accredited investors as a result of their failure to discharge their burden of proof.

59 The Brothers also owned shophouses at Katong Shopping Centre – the evidence in their AEICs as to the value of the shophouses was identical:

60 Somewhat belatedly, the defendants also disclosed a valuation report of the TCJ / TSL Shophouse and the TSK / TST Shophouse, prepared by Savills. ⁵² This valuation report indicated that each shophouse had a market value of $500,000. ⁵³

61 the Brothers’ evidence as to the value of cars owned by each of them at the material times is summarised below:

62 Strictly speaking, I do not need to consider the Financial Assets Requirement because it was not operative at the time of the Relevant Loans (see above at [18(a)]). That said, the Brothers’ financial assets remain relevant as they would fall within the scope of “net personal assets” and the value of these financial assets can go towards satisfying the Personal Assets Requirement.

63 The Brothers’ evidence on the extent of their financial assets comprises: (1) shares held by them in various privately owned companies; (2) bank balances; and (3) other investment products.

64 I begin with the available evidence on the Brothers’ respective shareholdings. On the basis of their disclosed assets, the Brothers generally owned shares in the same set of family-linked private companies. A list of these companies is tabulated below (at Annex A of this judgment) in alphabetical order. ⁵⁸

65 It is, in my view, important to obtain a valuation of these companies at the relevant time that is as accurate as possible because the respective values of these companies will necessarily inform the value of the Brothers’ respective shareholdings in those companies. In turn, the Brothers’ shareholdings in the various companies may, individually or collectively, have a bearing on their “net personal assets” and ultimately, their status as accredited investors. Unfortunately, the Brothers’ evidence as to the respective values of these private companies was uniformly unhelpful: with one voice, their assertion was that these were all private companies with “no open market value” and which had “never [been] valued by an independent valuer”. ⁵⁹

66 Having found that the legal burden rests on the Brothers to prove that they were not accredited investors, I find this explanation entirely unsatisfactory and unconvincing. The fact that none of the companies had ever been valued before does not mean that the shares in those companies have no value – it simply means that their value has yet to be assessed. The Brothers all accepted this on the stand. ⁶⁰ In this regard, to shift the evidential burden that initially lay on them, the onus and initiative was on the Brothers to either procure an independent valuation of the companies and / or their shareholdings, or to produce some alternative form of evidence from which the court might be able to assess the likely value of the companies at the relevant time (and consequently, the Brothers’ shareholdings). This would not have been a difficult task for the Brothers. The Brothers were variously directors or substantial shareholders of a number of companies:

(a) TCJ was a director of Fong Tat Holding and IAPL at the material time, ⁶¹ and owns 25%, 20%, and 50% of the shares in Fong Tat Holding, Fong Tat Group, and IAPL respectively. ⁶²

(b) TST was a director of Fong Tat Holding, Fong Tat Group, and ASPAC Restaurants (S) Pte Ltd at the material time, ⁶³ and owns 25% and 20% of the shares respectively in each of them. ⁶⁴

(c) TSK was a director of Fong Tat Holding and IAPL at the material time, ⁶⁵ and owns 25%, 20%, and 50% of the shares in Fong Tat Holding, Fong Tat Group, and IAPL respectively. ⁶⁶

(d) TSL was a director or Fong Tat Holding and Fong Tat Group at the material time, and owns 25% and 20% of the shares respectively in each of them. ⁶⁷

67 While not entirely clear, there was some evidence from the Brothers given during the trial that they are or were, in addition to the directorships listed above, also “in charge” of:

(a) Fong Ee Industrial Pte Ltd, in the case of TCJ; ⁶⁸

(b) Uni-Range Furnishing, in the case of TSL; ⁶⁹ and

(c) Alvito Pte Ltd, Alvito Civil Engineering and Construction Pte Ltd, ⁷⁰ Fortune Realty Co Pte Ltd, ⁷¹ Tan Cheong Lee Co Pte Ltd, ⁷² Total Solution Holdings Pte Ltd, ⁷³ and Uni-Global Enterprises Pte Ltd, in the case of TST. ⁷⁴

68 All the Brothers conceded on the stand that they would be able to request or access the financial statements of the companies they were directors and / or in charge of. ⁷⁵ It also cannot be disputed that financial statements did exist, at least for some of the companies. For example, in order to obtain the 2016 FTH Directors Loan, TSK had showed TTT the “business projects and financial statements” of Fong Tat Motor. ⁷⁶ Furthermore, extracts (comprising the cover and first two pages) of Fong Tat Group’s Annual Report and Accounts for the financial year ending 31 December 2009 were exhibited to TST’s AEIC. ⁷⁷ In my view, it beggars belief that if a genuine effort was indeed being made to present a full and accurate picture of the Brothers’ financial circumstances at the relevant time, only the first three pages of Fong Tat Group’s annual report would have been disclosed.

69 The absence of any probative evidence from the Brothers as to the financial position (and thus, the “value”) of any of the companies listed in Annex A is made even more stark when viewed together with the claimants’ attempts to show that the companies (or at least a number of them) are likely to be more valuable than the defendants were letting on. Using information derived from publicly available sources such as internet searches on a company website, social media platforms, and corporate announcements, ⁷⁸ the claimants have sought to show that the private companies which the defendants hold shares in must be of a value that is not insubstantial. In light of this evidence, the claimants contend that I can and should make a finding that one or more of the Brothers are accredited investors, even without the benefit of any independent evidence valuing their shares.

70 Publicly available information produced by the claimants suggests that some of the companies are relatively sizeable, comprising, amongst others, a property developer, a “major distributor of automotive spare parts”, an “automative parts supplier”, and an “office furniture company”. ⁷⁹ In particular, a 2016 corporate announcement reveals that Fong Tat Motor (in which all the Brothers hold shares) had purchased a property from Sabana REIT for $16.6 million in 2016. ⁸⁰

71 All this evidence raised by the claimants further pushes the evidential burden onto or back to the defendants to provide a satisfactory rebuttal to the inference that these companies are not as unprofitable as the Brothers make them out to be. Thus far, the defendants have not done anything to rebut these inferences. In view of the complete absence of any attempt to shed light on the value of their respective shareholdings in the companies in which they are shareholders, I am prepared to find that on this basis, the Brothers have failed to discharge their legal burden of proof and are thus considered accredited investors. For completeness, I nonetheless go on to discuss the rest of the evidence that was adduced during the trial.

72 Moving on to their bank accounts, the Brothers’ evidence was again exactly the same, and completely bereft of value – I have quoted directly from their AEICs to make the point:

73 As to the existence of other financial products:

74 A perusal of the preceding paragraphs would show that the Brothers’ evidence as to their financial dealings and financial position was in substance almost identical. Once again, the most notable feature of their evidence is the sheer absence of objective probative evidence and the opacity with which they have painted the picture of their financial circumstances.

75 To summarise, the Brothers testified that the houses they lived in and cars they drove at the time of the Relevant Loans were allegedly rented or under hire purchase as the case may be. Where they did own assets, those were allegedly mortgaged or financed to the hilt, such that the net value of the asset was effectively insignificant. At other times, the Brothers were simply unable to recall the value of their assets, or unable to produce a value because of an alleged lack of valuation or available documentation. Apart from the Katong shophouses, almost all of the Brothers’ evidence as summarised above consisted of bare assertions not backed or corroborated by any supporting documentation.

76 Given the conclusions I have reached above on the Personal Assets Requirement vis-à-vis the Brothers, it is not necessary for me to consider whether the Brothers also met the Income Requirement (see above at [43]).

77 I have held above that the defendants bear the legal burden of establishing that the Relevant Borrowers were not accredited investors and that consequently, TTT was not an excluded moneylender. In view of their threadbare financial disclosures which raised more questions than answers, I find that all the defendants have failed to discharge this burden. Accordingly:

(a) As discussed above at [51]–[53], I find that 02 Sensor and IAPL were both accredited investors at the material time.

(b) I find that TCJ and TST were both accredited investors at the material time as they have satisfied the Personal Assets Requirement (see above at [57]–[58]).

(c) I find that TSK and TSL were both accredited investors at the material time as they have failed to adduce sufficient evidence to discharge their burden of proving that they did not meet the Personal Assets Requirement. This finding is supported by the issues relating to the value of their shareholdings (see above at [71]). A fortiori, when considered together with their cars, the Katong shophouses, and their bank accounts – all of which would also go towards demonstrating if the Personal Assets Requirement was met or not but for which I do not have the benefit of any probative evidence from them. For completeness, these observations are equally applicable to TCJ and TST.

78 To conclude the discussion on this issue, as the defendants have failed to discharge their legal burden of proving that the Relevant Borrowers were not “accredited investors” within the meaning of the SFA, I find and hold that TTT was an “excluded moneylender” within the definition as set out in the MLA. Accordingly, TTT was not subject to the MLA at all, and the Moneylending Defence fails. Since the MLA did not apply to TTT (and by extension, the Relevant Loans), it is not necessary for me to consider the second issue identified at [12(b)] above – ie, whether TTT carried on the business of moneylending. Consequently, the defendants are liable under the Relevant Loans qua borrower or guarantor, as the case may be.

79 The sole remaining issue to be decided is (a) whether TTT had in fact granted a waiver of interest to TCJ; and if so (b) whether it was legally supportable at law (see above at [12(c)]).

80 TCJ’s case, as stated in his AEIC, is reproduced here: ⁸⁸

81 To support this, TCJ also exhibits a call log indicating that a call made to TTT’s mobile phone number, lasting 2.9 minutes, did take place on 15 April 2020 at 11.35am. ⁸⁹

82 The claimants do not contest that a call did take place, but they submit that TTT did not grant any form of waiver of interest to TCJ during the call. They argue that TTT was suffering from poor health at the time, including impaired hearing and slurred speech. ⁹⁰ In this state, TTT would not have been able to discuss and grant a waiver to TCJ in the span of a short 2.9 minute phone call. ⁹¹ Further, the claimants point out that TCJ’s evidence at trial was that he would simply “listen and hang up” when TTT’s secretary, Ms Lee Sok Wang (“Ms Lee”), called him to chase for interest payments; they submit that if a waiver had truly been given, the rational thing for TCJ to do would have been to inform TTT’s secretary of the waiver. ⁹²

83 Even if the court finds that there is a waiver on the facts, the claimants submit that the waiver is unsupported by consideration. TCJ asserts that the consideration was to “pay up the principal quickly and also the interest due for April 2020”. ⁹³ This, the claimants say, is merely the performance of an existing obligation and cannot constitute consideration at law. ⁹⁴

84 In my view, TCJ’s alleged waiver of interest fails for two reasons. First, on a balance of probabilities, I accept the claimants’ submission that it would have been quite unlikely for TCJ to have received a waiver of interest as alleged. With regard to TTT’s state of health at the time, I accept that TTT did suffer from speech and hearing difficulties at the time. This is borne out by two medical reports which are in the record. The first is a speech therapy report from Khoo Teck Puat Hospital dated 20 April 2023, but which was issued in respect of admissions on two occasions in December 2019. ⁹⁵ The report noted, amongst other things, “cognitive-communication deficits”. The second is a medical report from Ear Nose & Throat Partners Pte Ltd which was issued on 27 May 2023 in respect of a consultation dated 9 May 2020 and a subsequent review on 26 May 2020. This report stated “[a]udiometry showed hearing loss of 55dB in both ears”. ⁹⁶ Additionally, Mr Benjamin Tan gave evidence that by the time of the alleged telephone conversation, TTT had already suffered a stroke and thus could not speak very well. ⁹⁷ This was similarly supported by a separate medical report stating that TTT’s “upper limb weakness was likely secondary to stroke disease”. ⁹⁸

85 Ultimately, however, I do not find it necessary to decide if TTT’s health or mental state at the material time rendered him capable of understanding what TCJ was requesting or capable of agreeing to a waiver of interest on the 2018 TCJ Loan. Even if I accept that the telephone conversation took place between TTT and TCJ on the day in question, I do not accept that there was any waiver agreed to by TTT during that telephone conversation. Let me explain.

86 I find it implausible that if indeed interest on the 2018 TCJ Loan had been waived by TTT during the telephone conversation, that TCJ would not raise it with TTT’s secretary, Ms Lee, when TCJ was subsequently being chased by her for those very interest payments. Had interest in fact been waived by TTT, that would have been the obvious response from TCJ when chased by Ms Lee and which may have prompted Ms Lee to check with TTT if that was indeed the case. It does not seem logical that a person, having received a waiver of substantial interest payments, would “listen and hang up” when chased for those very interest payments by the lender’s representative. On the contrary, such a response from TTT (of listening and hanging up) is more consistent with there being no agreement for the interest to be waived. In fact, it might also be indicative of another scenario that I cannot ignore as being equally plausible – that while the telephone conversation may have taken place between TTT and TCJ and a request was made by TCJ during that conversation for interest on the 2018 TCJ Loan to be waived, that TTT declined to agree to any such waiver. That might also explain why (i) Ms Lee had no inkling of any such waiver having been agreed despite being TTT’s personal assistant for more than 40 years ⁹⁹ and (ii) TCJ would simply “listen and hang up” when Ms Lee called him thereafter to remind him to pay the outstanding interest.

87 Additionally, there is no contemporaneous objective evidence corroborating the contents of the conversation between TTT and TCJ, as alleged by the defendants. Against the backdrop of these observations, I also note that the defendants’ case on the alleged waiver has not been consistent; in my view, this adversely affects the credibility of their case on the alleged waiver. In its original pleaded defence in OC 381, the defendants pleaded that “sometime in July 2020, TTT agreed to forgive and not charge any interest to the Defendants at the request of TCJ or TSK … that the Defendants need only to pay the principal sums by way of instalments from then on”. ¹⁰⁰ Their defence was subsequently amended in two material respects: ¹⁰¹ first, the date of the alleged call was changed from July 2020 to 15 April 2020; second, instead of the alleged waiver being in respect of all loans to the defendants, the defendants’ new position became that the alleged waiver applied only to the 2018 TCJ Loan. These were amendments to material facts. Notwithstanding that the amendments were allowed, “[i]f material facts in the pleadings are amended, the Court may draw the appropriate inferences”: O 9 r 14(6) ROC 2021.

88 For all these reasons, I am far from persuaded that TTT agreed to waive the interest payable on the 2018 TCJ Loan. I find that there was no such waiver agreed to by TTT.

89 Even if a waiver had been granted, there are some difficulties with the defendants’ case that suggest the same result would have been reached in any event. First is the claimants’ argument that TCJ’s promise to make payment faster does not amount to valid consideration at law. Without deciding the point, I am prepared to assume that a promise to pay the principal faster might be good consideration – and in this regard I note the observations made in Ma Hongjin that “it is no longer onerous to demonstrate that the requirement of consideration has been satisfied because any factual benefit or detriment would suffice in the eyes of the law” [emphasis in original] (at [65]). Second, and more importantly, TCJ did not ultimately provide the consideration of “pay[ing] up the principal quickly”. Half the principal debt remains outstanding to date. ¹⁰² Even if this does not have the effect of unwinding the waiver, TCJ’s breach of his promise to “pay up quickly” would potentially sound in damages effectively amounting to the waived interest. However, as this latter point was not raised by either party, I say no more on it.

90 For completeness, I briefly address a point made in the defendants’ pleadings that the plaintiffs should have banked in two cheques of $50,000 (totalling $100,000) issued by TCJ which had been given to the plaintiffs on 5 November and 14 December 2021, and that these amounts should have been appropriated towards reducing any of the principal amounts claimed in the three actions. ¹⁰³ At the material time, the plaintiffs’ solicitors had asked the defendants’ solicitors which loans the cheques should be applied to but received no reply. ¹⁰⁴ In any case, these events do not affect the quantum I have adjudged to be payable by the defendants above. The point was only briefly raised in the pleadings and it was not even pursued by the defendants in their closing submissions. I am also inclined to agree with the claimants that they cannot be held responsible for not cashing in the cheques when they had sought but failed to obtain any clarity from the defendants as to how the sums should be applied. In any case, I am chary of making any findings as to the legal effect of (not) cashing in these cheques when there have been no arguments raised on the point by either party.

91 Apart from this point and the Waiver Defence which I have rejected, no other dispute has been raised by the defendants as to the amounts otherwise owed by them.

92 For the foregoing reasons, I grant the claimants judgment in OC 201, OC 381 and OC 382 as follows:

(a) in OC 201, the first to fifth defendants are jointly and severally liable to pay the claimants the sum of $100,000 being the outstanding principal under the 2016 FTH Directors Loan, and contractual interest thereon calculated at the rate of 2% per month from 6 May 2020 to the date of judgment; ¹⁰⁵

(b) in OC 381, the first and second defendants are jointly and severally liable to pay the claimants the sum of $500,000 being the outstanding principal under the 2018 TCJ Loan, and contractual interest thereon calculated at the rate of 2% per month from 28 December 2019 to the date of judgment; ¹⁰⁶ and

(c) in OC 382, the defendant is liable to pay the claimants the sum of $300,000 being the outstanding principal under the 2018 TSK Loan, and contractual interest thereon calculated at the rate of 2% per month from 5 June 2020 to the date of judgment. ¹⁰⁷

93 In respect of all three suits, post-judgment interest is awarded at the rate of 5.33% per annum on the respective judgment sums, commencing from the date immediately after the date of judgment to the date each judgment is satisfied. ¹⁰⁸

94 As I alluded to above at [26], there were unfortunately a number of issues with the defendants’ closing submissions that raised concerns. As I mentioned above (at [34]–[37]), the defendants’ closing submissions contained a significant misquotation of s 105 of the Evidence Act. ¹⁰⁹ The omission was more significant because the omitted proviso is directly material to the central legal issue at hand in this dispute regarding the burden of proof.

95 However, what was most troubling was the defendants’ citation of two “authorities” at paragraphs 67 and 68 of their closing submissions (“Relevant Paragraphs”) which were entirely fictitious (“Fictitious Authorities”) (see above at [27(b)]). In order to prevent the further dissemination of false information, I adopt the eminently sensible approach taken by the learned Assistant Registrar Tan Yu Qing in the recent decision of Tajudin bin Gulam Rasul v Suriaya bte Haja Mohideen [2025] SGHCR 33 at [11] (citing Luck v Secretary, Services Australia [2025] FCAFC 26 at [14]), and will refrain from repeating the actual citations of the Fictitious Authorities in this judgment.

96 Following the claimants’ reply submissions which raised the issue of the Fictitious Authorities, ¹¹⁰ I caused the Registry to write to the parties on 26 August 2025 and directed counsel for the defendants, Mr Goh Peck San (“Mr Goh”), to respond to the Claimants’ Allegations. ¹¹¹ Then followed a series of correspondence between the court and Mr Goh, the details of which I need not go into at this juncture. Among other things, Mr Goh was asked whether the Relevant Paragraphs had been generated by an artificial intelligence tool (“AI Tool”).

97 On 10 September 2025, Mr Goh sent a letter stating that (a) he agreed with the Claimants’ Allegations, (b) that the Fictitious Authorities had been provided by a fellow solicitor who had been engaged by Mr Goh to assist with research, and (c) that he did not know which AI Tool had been used. ¹¹² He also apologised and sought the court’s indulgence.

98 In response to further directions from the court, on 18 September 2025, Mr Goh informed the court that the solicitor he had engaged was Mr Amarjit Singh Sidhu (“Mr Sidhu”) of Amarjit Sidhu Law. Mr Goh’s reply also attached a letter from Amarjit Sidhu Law dated 17 September 2025. ¹¹³

99 As the matter is ongoing, I will not reproduce the contents of Mr Sidhu’s letter here, save to note briefly that Mr Sidhu sought to explain, inter alia, what transpired between him and Mr Goh in relation to the draft of the defendant’s closing submissions. Mr Sidhu also offered his apologies to the court and to counsel, in particular Mr Goh, and stated that it was an honest oversight that resulted in the Fictitious Authorities being cited in the defendant’s submissions, with no intention on his part to mislead the court. ¹¹⁴

100 While there has yet to be confirmation of the same from Mr Goh or Mr Sidhu, there are reasonable grounds to suspect that the Fictitious Authorities were likely to have been generated by an AI Tool(s) used in the preparation of the defendants’ closing submissions. It is now well-known that AI Tools, when utilised in the drafting of legal submissions, carry the risk of “hallucinating” plausible sounding but entirely fabricated legal “authorities” (see for example, the cases listed in the Appendix to the recent English High Court judgment in Ayinde v London Borough of Haringey [2025] EWHC 1383 (Admin)).

101 In light of the events outlined above, once all relevant information has been obtained by the court, the court will direct counsel, including Mr Sidhu, to address it on what, if any, consequences should follow from the defendants’ citation of the Fictitious Authorities.

102 I will consider this issue in greater detail, together with all questions pertaining to costs, in a subsequent judgment.