Mmip Services Sdn Bhd v Wee Chye Hee (BA-24NCvC-1432-11/2018)

CHUAH AH LENG [NO. K/P: 451209-05-5205] … PEMOHON-PEMOHON

R. MANOKARAN [NO. K/P SINGAPURA: S1661205G]

MUNIANDY BARVATHI [NO. K/P SINGAPURA: S6829468A]

M. PRIYATHARSINI [NO. K/P SINGAPURA: S9212621H] 07/01/2025 12:21:04

NAVINDRAN S/O MANOKARAN [NO. K/P SINGAPURA: S9720589B]

WEE CHYE HEE [NO. K/P SINGAPURA: S1677005A]

XIE LIANZHU @ YE LIANZHU [NO K/P SINGAPURA: S2747728C] RESPONDEN-RESPONDEN Grounds of Judgment Introduction [1] The applicants filed the originating summons seeking a declaratory order that the Malaysian Courts specifically refer to Selayang Sessions Court as having the jurisdiction to hear the respondents' claim as the accident, the cause of the action, took place in Malaysia. [2] The applicants further seek an order not to be held liable to satisfy any judgments obtained by the respondents in the Singapore Courts. Background Facts [3] The respondents, all Singaporeans, travelled in a bus bearing registration number PKF2212 driven by the third applicant, owned by the second applicant and insured by the first applicant. [4] A trip to Genting Highlands turned tragic when the bus the respondents were travelling on the return journey to Singapore was involved in an accident at KM31.3 Lebuhraya Karak, Gombak, at about 4 p.m. on 31-8-2016. [5] The respondents were initially treated in Malaysia. However, within a few days after the accident, the respondents were transferred to Singapore for further medical treatment. [6] The respondents sustained severe injuries from the accident. The injuries are brain injuries, including right-sided subdural haemorrhage, loss of consciousness, head trauma, facial fractures, rib fractures, spinal fractures, thoracic injuries, including bilateral pneumothorax, acute kidney injuries, hearing loss, anosmia, ankle fractures, lacerations, abrasions, and psychiatric problems. The first and sixth respondents have not fully recovered from the injuries they sustained and suffer from mobility issues whereby they cannot perform numerous daily activities without assistance. [7] After the accident, the respondents initiated several legal proceedings in the High Court of the Republic of Singapore as follows:

HC Suit No. 1044/2018 against the second and third applicants and one Grassland Express & Tours Pte Ltd.

(ii) HC Suit No. 1307/2018 against the second and third applicants and one Grassland Express Pte Ltd. [8] The third applicant was sued for negligent bus driving, while the second applicant was sued under vicarious liability as the employer. [9] R. Manokaran and his family did not file a police report. Wee Chye Hee filed police report No.013574/16 at Gombak Police Station on 2-9- 2016. The third applicant, Chuah Ah Leng, also filed a police report on 3-9-2016. [10] On 19-10- 2018, the first to fourth respondents initiated civil suit No. 1044/2018 in the High Court of Singapore against the second and third applicants. [11] The second and third applicants were served with a Writ of Summons and Statement of Claim in Suit No. 1044/2018. They did not enter an appearance within the specified time, which led to the first to fourth respondents obtaining a judgment in default against them. [12] The second and third applicants subsequently set aside the judgment in default and filed their defences. After a full trial, the High Court of Singapore rendered a verdict on liability against the third applicant on 3-8-2021 and against the second applicant on 16- 3-2022. The High Court of Singapore has also provided its grounds for judgment, which are included as exhibit “A-4” in Enclosure 82. [13] The fifth and sixth respondents filed a civil suit against the second and third applicants, making the same claims as the first to fourth respondents. This suit was registered as No. 1307/2018. [14] In case No. 1307/2018, the second and third applicants were served with a Writ of Summons and Statement of Claim. They did not respond within the specified time, which led to the fifth and sixth respondents obtaining a default judgment against them. [15] The second and third applicants set aside the default judgment and filed their defences. After a full trial, the High Court of Singapore ruled on liability, finding against the third applicant on 3-8-2021 and against the second applicant on 16-3-2022. The High Court of Singapore has also provided its grounds for judgment, which are presented as "A-4" in Enclosure 82. [16] The applicants attended the pre-trial conference to assess damages and informed the Singapore court that they would call Abdul Ghani bin Ariffin as a witness if necessary. [17] On 24-1-2019, unknown to the respondents, the applicants obtained an ex-parte order from the Shah Alam High Court as follows:

A declaration that the cause of action originated from the accident involving the bus at KM31.1 on the Karak Highway; therefore, the Subordinate Court in Malaysia holds exclusive jurisdiction to hear the claim.

(ii) A declaration that the Magistrates/Sessions Court of Selayang is the Subordinate Court in Malaysia that has the sole jurisdiction to hear this action since the cause of action arising out of the accident that occurred within the jurisdiction of Gombak Traffic Department which falls under the jurisdiction of the Selayang Court.

(iii) A declaration that the applicants are not liable to pay any judgment sum obtained/given by the Singapore Court against the second and third applicants. [18] On 27-6-2019, the respondents filed four individual applications to intervene and to set aside the court order dated 24-1-2019. Their applications were dismissed. [19] On appeal, the Court of Appeal reversed the Shah Alam High Court's decision dated 14-11-2019. The case has been sent back to be heard on its merits. [20] On 2-11- 2022, the Shah Alam High Court set aside the order dated 24-1-2019 and scheduled the hearing on an inter-parties basis, directing the parties to address the issue of forum non conveniens. Issues To Be Tried [21] Is the consideration of forum non conveniens pertinent to this matter? [22] Which Court is the appropriate forum to hear this matter? Decision of the Court [23] The applicants argued that the respondents had not secured a final judgment, as the assessment of damages remains outstanding. This situation is distinct from the High Court case of Mohd Syed bin Syed Jamaludin & Ors v MMIP Services Sdn Bhd & Ors [2023] 7 MLJ 80, in which a final judgment had already been issued. [24] The applicants contend that the provisions of the Reciprocal Enforcement of Judgments Act 1958 (REJA) are irrelevant without a final judgment. [25] It is indisputable that the second and third applicants had submitted to the jurisdiction of the High Court of Singapore, whereby the High Court of Singapore had entered judgment on liability after a full trial against the second and third applicants. [26] The first applicant exhibited considerable apprehension regarding the prospect of submitting to the jurisdiction of the High Court of Singapore, fearing potential repercussions and legal implications. Despite this unease, the applicant remained passive and took no measures to challenge or address the situation when the second and third applicants willingly accepted the jurisdiction of the High Court, thereby establishing a contrasting position. The Court of Appeal decision in the case of Kebabangan Petroleum Operating Co Sdn Bhd v Mikuni (M) Sdn Bhd [2021] 1 MLJ 693 is relevant. [27] This situation differs from Mohd Syed bin Syed Jamaludin & Ors v MMIP Services Sdn Bhd & Ors [2023] 7 MLJ 80. In that case, neither the insurer, the driver, nor the bus owner submitted to the jurisdiction of the Singapore Courts. [28] The applicants have a clear right to be heard and to contest the proceedings under the Reciprocal Enforcement of Judgments Act 1958 (REJA) provisions, provided that the respondents submit the necessary application. Sections 5 and 6 of the REJA outline the process for setting aside judgments that have already been registered. [29] I want to emphasise what the Court of Appeal stated in its obiter when upholding the High Court's decision in the case of Mohd Syed bin Syed Jamaludin & Ors v MMIP Services Sdn Bhd & Ors [2023] 7 MLJ 80, specifically regarding the issue of forum of conveniens. It was as follows: “[44] What the defendants should do is to wait until the plaintiffs apply to register the High Court of Singapore final judgments under REJA, then apply to set it aside on want of jurisdiction. See the case of United Malayan Banking Corp v Khoo Boo Hor 359 [1996] 1 SLR. For all intents and purposes, the defendants will still have their day in court to raise the issue of the jurisdiction of the High Court of Singapore in hearing matters related to the accident that happened in Muar, Johor. For the same reason, we agree with counsel for the plaintiffs’ submission that the issue of the forum of convenience is no longer relevant to be considered in this appeal. The issue of forum can be argued together with the issue of the jurisdiction of the court in setting aside the registered judgements.” [30] The first applicant's decision to file this originating summons instead of allowing the respondents to register their Singapore judgment in Malaysia after the assessment of damages is significantly detrimental to the respondents' rights. As a result of the accident, they have already experienced substantial injuries and a loss of livelihood. [31] The first applicant's failure to challenge the jurisdiction of the High Court of Singapore while only expressing concerns after a full trial that established the liability of the second and third applicants illustrates a violation of the principles of natural justice on the part of the respondents. [32] After reviewing all the facts and legal arguments presented, I have determined that the issue of forum non conveniens is now irrelevant since a full trial has established the liabilities of the second and third applicants. [33] However, I would still deliberate on the issue of forum conveniens for sake of completeness. The applicants submit that the Malaysian Court is a more appropriate forum to hear the respondents' accident claims. [34] The accident happened at KM31.3 Karak Highway, which falls under the jurisdiction of Selayang Court. The investigating officer is a local Malaysian, and the respondents' initial admissions were in Malaysian Hospitals. [35] The applicants asserted that the respondents' actions in filing lawsuits at the Selayang Sessions Court, specifically case numbers BD-A53KJ-108-08/2022 and BD-A53KJ-109-08/2022, indicate that the respondents have chosen to submit to the jurisdiction of the Malaysian Courts as the appropriate forum. [36] They further stated that Zoom hearings are convenient for witnesses from Singapore, eliminating the need for physical appearances. [37] The applicants also submitted that allowing the respondents to maintain their cases in Singapore is tantamount to “forum shopping.” The case of Multiglow Corporation Sdn Bhd & Anor v SCG Consultants Sdn Bhd [2020] 1 LNS 1916 was referred. [38] The applicants also contended that allowing foreign respondents to file suits in their home country based on REJA is unacceptable. [39] I have concluded that the High Court of Singapore is a more appropriate forum for adjudicating the respondents' claims arising from the accident based on the following factors:

All seven respondents are residing in Singapore.

(ii) The doctors and medical professionals who treated the respondents and are still treating the first and sixth respondents are from Singapore.

(iii) The respondents' employers and rehabilitation experts are also stationed in Singapore.

(iv) Zoom hearings can enable witnesses from Malaysia, who are fewer in number compared to the respondents and their expert witnesses, to testify.

The existence of the Singapore suits, with judgments on liability delivered after a full trial, indicates that the Singapore Court is the more appropriate forum. [40] I adhere to the principle stated by the Court of Appeal in the case of Bsnc Leasing Sdn Bhd v Sabah Shipyard Sdn Bhd & Ors & Anor Appeals [2000] 2 CLJ 197, which decided as follows: “ …. It must be established that there is clearly a more appropriate forum in another country with which the action has the most real and substantial connection and that it is in the interests of justice to have the dispute resolved by that forum… The leading case on the subject is Spiliada Maritime Corp v Cansulex Ltd [1986]3 ALL ER 843, where Lord Goff of Chieveley formulated the underlying principles in the following terms (at p. 854): The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all parties and the ends of justice. In deciding where the interests of justice lie, a court may take into account a combination of several factors. These include, but are not confined to, the following matters:(i) that the dispute has a real and substantial connection with the foreign court ;(ii) that all or most of the important witnesses are situated within the jurisdiction of the foreign court…….” [41] The same principle was applied in the case of Mohd Syed bin Syed Jamaludin & Ors v MMIP Services Sdn Bhd & Ors [2023] 7 MLJ

[42] I have also considered the inconvenience and extra costs associated with pursuing two separate legal proceedings. The respondents' cases in the High Court of Singapore had already been decided on liability after a full trial and are merely awaiting the process for assessing damages. The principle established in the High Court case of Herbert Thomas Small v Elizabeth Mary Small (Kerajaan Malaysia & Anor, interveners) [2006] 6 MLJ 372 is relevant. [43] The applicants contended that the respondents, by initiating two lawsuits in the Selayang Sessions Court in August 2022, have raised significant concerns regarding the appropriateness of the Singapore Court as the relevant forum for these proceedings. [44] I agree with the respondents' reasons for filing the lawsuits in the Selayang Sessions Court, as this action protects against the expiration of the six-year limitation period for tort actions. [45] On 26-6-2024, the respondent's application to withdraw the suits in the Sessions Court was granted. As a result, this matter is no longer pertinent for consideration by this Court. [46] The applicants referenced the House of Lords case, Chaplin v Boys (1971) AC 356, to support their position that personal injury claims should generally be evaluated according to the principle of lex loci delicti or the location of the tort. They argued that the Malaysian Court constitutes the proper jurisdiction for this matter. Furthermore, they contended that the respondents' choice to initiate legal proceedings in Singapore reflects an attempt at "forum shopping." [47] I respectfully agree with the respondents that the House of Lords case of Chaplin v Boys (1971) AC 356 lacks relevance for the following reasons:

Both individuals resided in England and were stationed in Malta at the time of the accident.

(ii) The legal proceedings commenced in England, with the primary issue being whether damages should be evaluated according to the laws of Malta or England. [48] The principles of natural justice will be upheld by respecting the jurisdiction of the Singapore Court, which has already issued a judgment on liability. Moreover, the second and third applicants have chosen to submit to the jurisdiction of the High Court of Singapore. Conclusion [49] In light of the aforementioned considerations, I hereby render a ruling that the originating summons submitted by the applicants be dismissed. Furthermore, costs are awarded in the amount of RM4,000.00. Dated: 7th January 2025 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court of Malaya Shah Alam Selangor Date of Decision: 24th October 2024 Counsels: For the Applicants: Silva Velu, [Messrs Silva Velu & Co.] For the Respondents: Aufa binti Radzi & Tee Wei Herng Calvin, [Messrs Skrine]