![]() ![]() Goh Chan Pheng was not available at the time the parties made their closing submissions. The second way in which Goh Chan Pheng may read is that it lays down a substantive objective component, consonant with Ho Kang Peng. That case has been regarded in a leading local text as laying down a purely objective approach to determining a civil breach of the duty to act bona fide in the interests of a company: Corporate Law at paras 09.022–09.023. To the extent that this is true, Goh Chan Pheng departs from the Court of Appeal’s earlier approach in Ho Kang Peng v Scintronix Corp Ltd 3 SLR 329 (“ Ho Kang Peng”). First, it may be read as relying on the objective assessment of a director’s intention purely as an evidential basis upon which to draw an inference as to his subjective intention. In this connection, I add that Goh Chan Peng may be read in two ways. Therefore, it would be inappropriate for me to suggest or to adopt a comprehensive legal definition of what corruption is for the purposes of determining whether a director is in breach of duty.ħ8 Having framed the analysis as incorporating a discrete subjective element, the Court of Appeal in Goh Chan Peng then endorses the observation in Walter Woon on Company Law (Tan Cheng Han gen ed) (Sweet & Maxwell, Revised 3rd Ed, 2009) that the courts in practice often apply a more objective test (at ). In any event, much will depend on the circumstances. But that is not the only way in which he may breach that duty. A director may breach his duties as a director by giving a corrupt payment as defined in the criminal law. But the broad question in this part of my analysis is whether the defendant breached his duty to Hocen as a director and not whether he is guilty of the crime of corruption. That definition contains the mental and physical elements which a prosecutor must prove to secure a conviction for corruption. There is such a definition in the penal legislation which criminalises corruption. In that context, there is no technical definition of corruption is which is applicable. The plaintiff has correctly cited that case on this point.Ħ6 I begin by noting that I am making findings about the true nature of the Payments in the context of determining whether a director has breached his duty to the company. The distinction between the legal and evidential burdens of proof are well-established and are explained fully in the Court of Appeal’s decision in Britestone Pte Ltd v Smith & Associates 4 SLR(R) 855 at –. For the reasons I have given, the defendant has failed to produce weighty or even credible evidence to the contrary. The evidential burden of rebutting that allegation thus falls properly upon the defendant. Instead, I find that the plaintiff has produced evidence which is not inherently incredible – for example, in the form of the liquidator’s evidence that no documentation was found in Hocen’s records suggesting that Crossbridge had performed the Services – which suffices to raise an inference that Crossbridge did not in fact perform the Services. The suggestion is that the plaintiff is attempting to shirk the legal burden of proving his case by relying on an absence of evidence that Crossbridge performed the Services. ![]() I accept the defendant’s submission that the plaintiff has brought these suits against him as part of a vendetta arising from the defendant’s decision to kill the goose that laid the golden egg by winding up Hocen in 2007.ĭefendant’s Closing Submissions, para 42. The parties’ business relationship has obviously ended in acrimony. It also led the plaintiff to fund the liquidators to pursue the defendant in these suits, and eventually to take over as the plaintiff in both suits. ![]() The resulting deadlock led to the defendant’s application to wind up Hocen in 2007. ![]() Each party then suspected the other of trying to take over the entire corrupt business for himself. In short order, and supercharged by corruption, Hocen’s business proved lucrative beyond either party’s expectations (see below). The parties’ business relationship began on the basis that the plaintiff would bring to the table his capital and access to financing while the defendant would bring to the table the business opportunity to sell cables in China and his personal relationships with Chinese buyers. 33 Before turning to the parties’ cases, I make this general observation. ![]()
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