Ying Mui v Frank Kiang Ngan Hoh (Ruling No 2)
[2016] VSC 531
•5 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2012 06147
| YING MUI PTY LTD (ACN 009 992 449) AND OTHERS | First Plaintiff/First Defendant by Counterclaim |
| AMORE CORPORATION PTY LTD (ACN 097 964 175) | Second Plaintiff/Second Defendant by Counterclaim |
| KIANG PO HOH (ALSO KNOWN AS GEORGE HOH) | Third Plaintiff/Third Defendant by Counterclaim |
| HAN KEYET HOH | Fourth Plaintiff/Fourth Defendant by Counterclaim |
| and | |
| SHARIKAT YING MUI SDN BHD | Fifth Defendant by Counterclaim |
| v | |
| FRANK KIANG NGAN HOH AND OTHERS | First Defendant/First Plaintiff by Counterclaim |
| POOI YOKE LIM HOH | Second Defendant/Second Plaintiff by Counterclaim |
| LYNN YOOK LIEN HOH | Third Defendant/Third Plaintiff by Counterclaim |
| IAN HAN LOK HOH | Fourth Defendant/Fourth Plaintiff by Counterclaim |
| LOKIT INVESTMENTS PTY LTD (ACN 006 855 741) | Fifth Defendant |
| LUMARKYE PTY LTD (ACN 131 575 785) | Sixth Defendant |
| FROSTHOLLOW PTY LTD (ACN 151 816 401) | Seventh Defendant/Sixth Defendant by Counterclaim |
| OLREY PTY LTD (ACN 140 494 319) | Eighth Defendant/Seventh Defendant by Counterclaim |
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JUDGE: | VICKERY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2016 | |
DATE OF RULING: | 5 September 2016 | |
CASE MAY BE CITED AS: | Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 531 | |
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EVIDENCE – Hearsay exception in civil case – Maker of the representations already called to give evidence and has completed his evidence – Section 64(3) Evidence Act 2008 (Vic) – Principles in application of s 64(3) – Width of the exception – First-hand hearsay – Likely to have little probative value – Particular circumstances of the case considered to ensure fairness in the trial process – Hearsay representations admitted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M S Osborne QC with Mr P Creighton-Selvay | Strongman & Crouch |
| For the First to Fifth Defendants | Mr P J Bick QC with Mr C H Truong | Arnold Bloch Leibler |
| For the Sixth Defendant | Mr M G R Gronow | Tribeca Legal |
| For the Seventh and Eighth Defendants | Mr C E Shaw | Norton Gledhill |
| For the Fifth Defendant by Counterclaim | Mr T J F McEvoy | Herbert Smith Freehills |
HIS HONOUR:
In the course of the trial, counsel for the the Plaintiffs objected to several statements in the witness statement of Lynn Hoh dated 30 August 2016 on the ground of hearsay.
The statements in paragraph [32] (‘Representations A’) were:
Before I returned to Australia I knew only some of the details of the extended Hoh family’s Australian Investments and the structures in which those investments were held. I knew that I was a director of Ying Mui. I did not take an active role in the management of the YMA Group. On occasions when I visited Melbourne, Frank [Frank Hoh] took me to various properties owned by the YMA Group. Frank told me that the purpose of the YMA Group was to diversify the extended Hoh family’s business interests outside of Malaysia. I was told by Frank that this was done because of:
(a)the general desirability of investing outside of Malaysia, given the somewhat unstable political and economic environment there; and
(b)the risks to SYM associated with the winding up application and the need to establish an alternative capital base to continue the benevolent purpose.
[Underlined parts objected to as hearsay]
The statement in paragraph [41] (‘Representation B’) was:
In relation to the funds transferred from SYM in Malaysia, I learned that the funds had been recorded in Ying Mui’s and Amore’s financial statements as loans from George, Robert (later, Han) and Lokit. I asked Frank [Frank Hoh] why he had recorded the funds sent from Malaysia in that way. He told me he had been advised by Ying Mui’s and Amore’s accountants at the time to record it like that.
[Underlined part objected to as hearsay]
The statements objected to in these paragraphs are hearsay and prima facie are to be excluded as not admissible pursuant to s 59 of the Evidence Act 2008 (Vic) (the ‘Act’). They are clearly first-hand hearsay, comprising evidence of a previous representation made by a person (Frank Hoh) to prove the existence of the facts asserted which can reasonably be supposed that the person (Frank Hoh) intended to assert, having regard to the circumstances in which the representations were made.
Given that this is a civil proceeding and Frank Hoh, the maker of the representations, is available to give evidence, in the sense that he has been called to give evidence, the exception in s 64(3) of the Act applies.
Section 64 provides:
Exception—civil proceedings if maker available
(1)This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to—
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation—
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
(3)If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b)a person who saw, heard or otherwise perceived the representation being made.
(4)A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Section 64(3) does not appear to have received detailed analysis in academic writing.[1]
[1]See, eg, Stephen Odgers Uniform Evidence Law (Thomson Reuters, 11th ed, 2014) 273–274; J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) 1346; John Anderson, Uniform Evidence Law: Text and Essential Cases (Federation Press, 3rd ed, 2016) 371–372.
Section 64 deals with two situations. The first is where it is intended not to call the witness (s 64(2)), in which case the s 67 ‘reasonable notice’ requirement applies. The second is where the person who has made the representation has been or is to be called to give evidence (s 64(3)), in which case s 67 does not apply.
Section 64(3) applies only to first-hand hearsay, that is a previous representation made by a person whom has personal knowledge of an asserted fact pursuant to s 62(1) of the Act.
It should be further observed that s 64(3) is narrower than the provisions of s 63, which applies in the situation where the maker of the representation is not available. On the other hand, sub-s (3) was widened as a result of the ‘fresh in the memory’ requirement being removed[2] following the adoption of a recommendation of the joint report of the Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission on uniform evidence legislation.[3] Prior to this reform, the sub-section concluded with the following phase which imposed an additional restriction:
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
[2]Evidence Amendment Act 2008 (Cth) sch 1 item 27; Evidence Act 2008 (Vic) s 64(3).
[3]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report 102, NSWLRC Report No 112, VLRC Final Report (2005) 228–230 [8.8]–[8.16].
This effect of this amendment was referred to by Refshauge J in Oakton Services Pty Ltd v Tessari:[4]
There is no doubt that, subject to other exclusionary rules, s 64 of the Evidence Act renders such evidence admissible. Indeed, s 64(3) appears to widen the gate for such evidence very substantially, since the recent amendment to remove the qualification that the occurrence of the fact asserted must be fresh in the memory of the person who made the representation.
[4](2009) 224 FLR 332, 334.
In Osborne Metal industries v Bullock (No 1) (‘Osborne’),[5] McDougall J noted the following about the apparent purpose of the exception in s 64(3) in the context of its application to the admissibility of representations contained in documents:[6]
It will be observed from s 64(1) that the area of its operation is that "a person who made a previous representation is available to give evidence about an asserted fact". In those circumstances, if the person is giving evidence (see subs 3 - "has been or is to be called"), the person can give evidence of the representation. In my view, when one reads subs 3, in conjunction with subs 1, it is clear that the exception is predicated upon the ability of the party against whom the document (and again, I will confine myself to documents) is tendered to cross-examine the person about the representation on which reliance is placed.
[5][2011] NSWSC 636.
[6]Ibid [26].
However, in Osborne the Court refused to admit the document in question. Although the relevant witness was called to give his evidence, he did not give any evidence about the document or the representations contained in the document by reference to it. The tender was made some day and a half after the relevant witness had completed his evidence and had been excused from further attendance. Against this background, McDougall J observed that the purpose of the section which he identified was ‘not met in circumstances such as the present’.[7]
[7]Ibid.
The result is that the operation of the section is broad, and applies, consistently with the administration of practical justice in its application, whenever the maker of the representation has given evidence or is available to do so.
Further, McDougall J determined to exercise the general discretion contained in s 135 of the Act in refusing to admit the document, reasoning:[8]
In any event, even if I were wrong in that construction, the fact that Mr Borsak is unavailable, and cannot be tested on the representations that are now relied upon to re-establish his credit, is a powerful - in my view dispositive - reason for refusing, in the exercise of the general discretion given by s 135, to admit the document.
[8]Ibid [27].
The principal purpose behind s 64(3) is to maintain fairness in the trial process in relation to first-hand hearsay representations, whether the representations are contained in oral statements or in documents, but in either case when the maker of the representations has been or is to be called to give evidence. The discretion in s 135 may operate to support the objective of fairness. Whether that purpose is or is not achieved at the trial, will depend on the inexhaustible variety of individual circumstances which present themselves for consideration in the course of the evidence.
In the present case, the maker of the representations, Frank Hoh, had completed his evidence, was cross examined upon it and was excused from giving further evidence. Although in his evidence, he did allude to the subject matter of what was contained in the alleged conversations with his daughter, Lynn Hoh, being the alleged ‘asserted fact(s)’, he made no reference to those precise conversations, either in evidence in chief, or in cross examination. However, the Plaintiff parties did cross examine upon the subject matter of the alleged ‘asserted fact(s)’ comprised in the conversations and were squarely put on notice of the actual conversations by the delivery of the witness statement of Lynne Hoh which set them out. Further, Frank Hoh is a party to the proceeding, and is available to be re-called to be cross examined, if necessary, and I am persuaded that the circumstances warrant this course.
For these reasons, I am of the opinion that the s 64(3) exclusion should operate in this case to enable the conversations to be admitted on that ground.
However, the alleged representations comprised in Representations A are likely to be of limited probative value and carry little weight.
Representations A suffer from the following patent deficiencies, namely vagueness:
(a)as to the numbers of the conversations said to contain the representations and the times or periods when the representations were allegedly made;
(b) as to the precise content of the conversations; and
(c) surrounding the use of the term ‘benevolent purpose’.
Although I am satisfied that Lynn Hoh is recalling as best as she can, the representations contained in Representations A are at best an impression of what the witness can remember of the conversations which, it seems, occurred a long time ago, rather than comprising statements which are likely to be sufficiently reliable for the Court to place more than little weight on what is alleged to have been said.
While this position raises a question as to whether the general discretion under s 135 of the Act should be invoked, being a trial before a Judge alone as opposed to trial by jury, I am not satisfied that the exercise of the discretion in this case is warranted, and in any event, it was not advanced by counsel for the Plaintiffs or argued by the relevant Defendants.
Representation B, however, is more precise. The evidence is designed to buttress the position taken by Frank Hoh in the witness box that certain entries in the financial statements of the First Plaintiff, Ying Mui Pty Ltd (‘Ying Mui’), and the Second Plaintiff, Amore Pty Ltd (‘Amore’), were done that way on the advice of the accountants of those companies. Frank Hoh gave evidence about this ‘asserted fact’ and there was opportunity for cross examination on the issue. The fact that he may have also described the advice to his daughter serves to a limited extent to corroborate the fact of this advice. However, it is a matter for the Court to arrive at a conclusion on the issue on the whole of the evidence, and make the appropriate findings accordingly.
In the circumstances, I will not exclude the representations comprised in Representations A and the Representation B by reason that they fall within the exception in s 64(3) of the Act, and there is no other reason for exclusion, including s 135, which should operate.
There remain for consideration further objections taken by the Plaintiff parties to parts of paragraphs [40(b)], [42] and [47] of Lynn Hoh’s witness statement.
Lynn Hoh was the sole director and shareholder of Frosthollow Pty Ltd (‘Frosthollow’), the Seventh Defendant. Frosthollow is presently the trustee of two family discretionary trusts, the Ying Mui Trust and the Amore Trust. The First Plaintiff is the former trustee of Ying Mui Trust and the Second Plaintiff is the former trustee of the Amore Trust. Frosthollow became the trustee of the Ying Mui Trust after 18 November 2011 and the Amore Trust in 2012.
Lynn Hoh is also the Fifth Defendant in the proceeding, and is alleged to have breached her duties to Frosthollow and the trusts of which it is the trustee, in effecting a sale of the Sydenham property to Lumarkye Pty Ltd, the Sixth Defendant, one of the directors of which is Lyn Hoh’s husband, Dominic Weng Khong Low. Lynn Hoh was also a director of Ying Mui, and owed duties as a director to that company.
The statements objected to by the Plaintiff parties each are relevant, in my opinion, to the state of mind of Lynn Hoh at the relevant time in her capacity as a director of the trustee company Frosthollow and as a director of Ying Mui, and are therefore admissible for that purpose, and that purpose only.
The statements are therefore admissible.
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