BACHMEER CAPITAL LIMITED v ONG CHIH CHING & 7 Ors

"This decision deals with an application to hear the evidence of two witnesses by video link." — Per Vivian Ramsey IJ, Para 1

Case Information

• Citation: [2018] SGHC(I) 01 (also stated as [2018] SGHC(I) 01 / [2018] SGHCI 1) (Para 0)
• Court: Singapore International Commercial Court (Para 0)
• Date: 29 January 2018; grounds dated 13 February 2018 (Para 0)
• Coram: Vivian Ramsey IJ (Para 0)
• Case Number: Suit No 2 of 2017 (Summons No 2 of 2018) (Para 0)
• Area of Law: Evidence; civil procedure; live video-link testimony; international commercial litigation (Paras 6–9)
• Counsel for the plaintiff by original action and the 1st defendant in counterclaim: Foo Maw Shen, Chu Hua Yi, Ng Sook Zhen, and Michelle Lee Ying Ying (Dentons Rodyk & Davidson LLP) (Para 0)
• Counsel for the 1st, 2nd, 4th, 5th & 6th defendants by original action and the plaintiffs in counterclaim: Jimmy Yim SC, Chia Voon Jiet, Andrew Lee, and Dierdre Grace Morgan (Drew & Napier LLC) (Para 0)
• Counsel for the 3rd defendant by original action: Abraham Vergis & Lim Mingguan (Providence Law Asia LLC) (Para 0)
• Other parties: 7th and 8th defendants by original action and 4th and 5th defendants in counterclaim were unrepresented and absent (Para 0)

Summary

This judgment concerned an application by the KOP Defendants for leave for two factual witnesses, Mr Lee and Chairman Yang, to give oral evidence by live video link from Shanghai, China. The court identified the governing framework as s 62A of the Evidence Act and Order 109 rule 6 of the Rules of Court, and it approached the application by considering the reasons each witness could not give evidence in Singapore, the technical arrangements for the link, and whether any party would be unfairly prejudiced. (Paras 2, 6, 7, 9)

The court dismissed the application in respect of Mr Lee because the only reason advanced was convenience and cost-saving, which the judge held was not enough when weighed against the importance of live in-person testimony to fair proceedings. By contrast, the court granted the application for Chairman Yang because the evidence showed that he could not obtain permission to travel, his passport was being retained, and he had medical and official-travel constraints; the court was satisfied that live video-link evidence would not unfairly prejudice the parties. (Paras 16, 19, 21, 22, 25)

The judgment also illustrates the practical operation of cross-border video-link evidence in international commercial litigation. The court noted that the IT staff tested the link to Shanghai and that the eventual quality of the link was good, but it still treated the statutory fairness inquiry as central. Costs of the application were reserved until the conclusion of the trial. (Paras 11, 13, 26)

How did the court frame the application for live video-link evidence?

The court began by identifying the application as one for two factual witnesses to testify by live video link from Shanghai. The application was made by Summons No 2 of 2018 dated 19 January 2018, and it was brought by the 1st, 2nd, 4th, 5th, and 6th defendants by original action, described in the judgment as the KOP Defendants. The plaintiff by original action objected and filed evidence in response. (Paras 2, 3)

The judge then explained the procedural course of the application. On 27 January 2018, he determined the application in respect of Mr Lee without a hearing and dismissed it. He adjourned the application in respect of Chairman Yang until the first day of trial, 29 January 2018, so that further evidence could be obtained and considered. He later ruled on 2 February 2018 that Chairman Yang should give oral evidence by live video link from Shanghai during the trial. (Paras 4, 5)

"I now set out my reasons for dismissing the application in respect of Mr Lee and granting the application in respect of Chairman Yang." — Per Vivian Ramsey IJ, Para 5

The framing of the issue was therefore not abstract. The court was not deciding whether video-link evidence is generally permissible; it was deciding whether these two particular witnesses, on these particular facts, satisfied the statutory and fairness criteria. The judgment expressly tied the analysis to s 62A of the Evidence Act and to the Court of Appeal’s approach in Sonica Industries Ltd v Fu Yu Manufacturing Ltd. (Paras 6, 8, 9)

What statutory framework governed the court’s decision?

The court set out s 62A of the Evidence Act in full, emphasizing that a person may, with leave of court, give evidence through a live video or live television link in non-criminal proceedings if one of the statutory gateways is met. The judgment reproduced the provision and then focused on the gateway relevant here: that the witness is outside Singapore and the court is satisfied that it is expedient in the interests of justice to allow the evidence to be given by link. (Para 6)

"62A.—(1) Notwithstanding any other provision of this Act, a person may, with leave of the court, give evidence through a live video or live television link in any proceedings, other than proceedings in a criminal matter, if — (a) the witness is below the age of 16 years; (b) it is expressly agreed between the parties to the proceedings that evidence may be so given; (c) the witness is outside Singapore; or (d) the court is satisfied that it is expedient in the interests of justice to do so." — Per Vivian Ramsey IJ, Para 6

The court also reproduced s 62A(2), which directs attention to all the circumstances of the case, including the reasons for the witness being unable to give evidence in Singapore, the administrative and technical facilities and arrangements at the place of testimony, and whether any party would be unfairly prejudiced. The judgment further noted the fairness safeguard in s 62A(5), which prevents the court from making an order inconsistent with its duty to ensure that proceedings are conducted fairly. (Para 6)

"In considering whether to grant leave for a witness outside Singapore to give evidence by live video or live television link under this section, the court shall have regard to all the circumstances of the case including the following: (a) the reasons for the witness being unable to give evidence in Singapore; (b) the administrative and technical facilities and arrangements made at the place where the witness is to give his evidence; and (c) whether any party to the proceedings would be unfairly prejudiced." — Per Vivian Ramsey IJ, Para 6

"The court shall not make an order under this section, or include a particular provision in such an order, if to do so would be inconsistent with the court’s duty to ensure that the proceedings are conducted fairly to the parties to the proceedings." — Per Vivian Ramsey IJ, Para 6

In addition, the court referred to Order 109 rule 6 of the Rules of Court, which permits the court to give directions on the giving of evidence through a live video or live television link, subject to s 62A of the Evidence Act. The judgment treated the rule as procedural support for the statutory power, not as a separate source of substantive entitlement. (Para 7)

"Directions for and conduct of hearing (O. 109, r. 6) 6.—(1) Despite Rules 2(1) and (6), 3(1), 4(1) and (7) and 5(1), the directions which the Court may give under Rule 2(7)(a), 3(3)(a), 4(8)(a) or 5(3)(a) include directions on one or more of the following matters: … (f) subject to section 62A of the Evidence Act (Cap. 97), the giving of evidence through a live video or live television link; …" — Per Vivian Ramsey IJ, Para 7

The court’s approach was therefore structured by statute, rule, and precedent. It did not treat the application as a matter of convenience or case management alone; it treated it as a discretionary evidential order governed by express statutory factors and by the overarching duty of fairness. (Paras 6, 7, 9)

How did Sonica Industries shape the court’s approach?

The judgment expressly relied on the Court of Appeal’s decision in Sonica Industries Ltd v Fu Yu Manufacturing Ltd as the leading authority on applications for evidence by live video link under s 62A. The court said that Sonica considered the relevant matters under s 62(2) to determine whether to grant leave, and it used that authority to anchor its own analysis of materiality, control over the witness, and efforts to secure attendance. (Para 8)

"The approach to applications to give evidence by live video link under s 62A of the Evidence Act was considered by the Court of Appeal in Sonica Industries Ltd v Fu Yu Manufacturing Ltd [1999] 3 SLR(R) 119." — Per Vivian Ramsey IJ, Para 8

The judgment summarized the result in Sonica as one where the Court of Appeal granted the application for one witness whose evidence was material, while declining it for another witness whose evidence was not material to the issues and related merely to credibility. That summary mattered because it showed that the court was not applying a blanket presumption in favour of video-link testimony; materiality and the purpose of the evidence remained central. (Para 8)

"The Court of Appeal therefore granted the application in respect of that witness whilst declining the application in respect of another witness whose evidence was not material to the issues but related merely to credibility." — Per Vivian Ramsey IJ, Para 8

Using Sonica, the judge stated that he had to consider all the circumstances, including the reasons for the witness being unable to give evidence in Singapore, the materiality of the evidence to the issues, and the efforts taken to secure the witnesses’ presence in Singapore. This was the analytical bridge between the statutory text and the concrete facts of the two witnesses. (Para 9)

"Following the requirements of s 62A of the Evidence Act and the approach of the Court of Appeal, in deciding whether to give leave for evidence to be given by video link, I had to have regard to all the circumstances of the case, including the reasons for the witness being unable to give evidence in Singapore." — Per Vivian Ramsey IJ, Para 9

"I also had to consider whether the evidence of the witnesses in this case were material to the issues at hand and the efforts taken to secure their presence in Singapore." — Per Vivian Ramsey IJ, Para 9

Why was Mr Lee not allowed to testify by video link?

The court’s refusal of Mr Lee’s application turned on the insufficiency of the reason advanced for his inability to attend in Singapore. The evidence was that Mr Lee was not an employee of the KOP Defendants and did not travel to Singapore often. He would have to spend three days away from his work at Raffles Hospital in Shanghai to give evidence, and the application said that, for convenience and to save time and costs, he should be permitted to testify from Shanghai. (Para 16)

"In relation to Mr Lee’s evidence, My Pynn stated in his fifth affidavit that Mr Lee was not an employee of the KOP Defendants and did not travel to Singapore often. He would therefore have to spend three days away from his work at the Raffles Hospital in Shanghai to give evidence.2 It was therefore proposed that, for convenience and to save time and costs, he should be permitted to give evidence from Shanghai." — Per Vivian Ramsey IJ, Para 16

The judge held that this alone was not sufficient. He expressly said that inconvenience and cost-saving, standing by themselves, did not satisfy the statutory inquiry, especially when weighed against the importance of a witness giving important evidence in person so that proceedings are conducted fairly. The court’s reasoning shows that the statutory phrase “reasons for the witness being unable to give evidence in Singapore” requires more than a preference for efficiency. (Para 19)

"But that was the only reason given by the KOP Defendants for Mr Lee’s inability to give evidence personally, under s 62A(2)(a) of the Evidence Act. This alone was not sufficient, especially when considered against the fact that it is important that a witness give important evidence in person so that the proceedings are conducted fairly." — Per Vivian Ramsey IJ, Para 19

The court therefore treated Mr Lee’s application as failing at the threshold of justification. The judgment did not suggest that inconvenience can never matter; rather, it held that inconvenience alone, without more, was inadequate where the witness could attend and where the evidence was important enough to justify the ordinary preference for in-person testimony. That conclusion was consistent with the fairness safeguard in s 62A(5). (Paras 6, 19)

Why was Chairman Yang allowed to testify by video link?

Chairman Yang’s application stood on a materially different factual footing. The evidence before the court was that his passport was being held by the Communist Party Organising Department, that enquiries had been made about the proposed trip to Singapore, and that he had been informed that the trip would not be allowed. The court also had before it evidence of medical and mobility issues, including Parkinson’s disease, and a Chinese government notice relating to limitations on travel abroad for people in his position. (Paras 21, 22)

"Mr Pynn was unable to exhibit a copy of the relevant regulations but said that Chairman Yang’s passport was currently still being held by the Communist Party Organising Department and although he had enquired about the proposed trip to Singapore to give evidence he had been informed that it would not be allowed." — Per Vivian Ramsey IJ, Para 21

"Subsequently in his first affidavit Mr Andrew Lee exhibited a medical certificate from Dr Chong Kiang at Raffles Medical, Shanghai so that Chairman Yang suffered from Parkinson’s disease and mobility issues.5 He also exhibited the relevant Chinese government notice relating to the limitations on travel abroad for people in Chairman Yang’s position.6" — Per Vivian Ramsey IJ, Para 22

The court also considered the practical arrangements for the link. The IT staff had liaised with the solicitors and tested the video link to the International Financial Centre in Shanghai, and the eventual link quality was good when Chairman Yang testified. This mattered because s 62A(2)(b) requires the court to consider the administrative and technical facilities and arrangements at the place of testimony. (Paras 11, 13)

"This led to liaison between the solicitors for the KOP Defendants and the court IT staff, who subsequently tested the video link to the International Financial Centre in Shanghai." — Per Vivian Ramsey IJ, Para 11

"In the event, the preparation work carried out by the IT staff was reflected in the good quality video link which was in place when Chairman Yang eventually testified by video link at trial." — Per Vivian Ramsey IJ, Para 13

On that record, the judge concluded that the inability to travel was genuine and supported by evidence, and that the technical arrangements were adequate. He therefore considered it appropriate to grant permission for Chairman Yang to give evidence by video link, being satisfied that no party was unfairly prejudiced. The court accepted that there were the usual limitations compared with physical presence, but held that those limitations did not outweigh the benefit of receiving live evidence from him. (Paras 25, 26)

"I therefore considered it appropriate to grant permission for Chairman Yang to give evidence by video link. I was satisfied that his ability to give evidence by video link meant that no party was unfairly prejudiced." — Per Vivian Ramsey IJ, Para 25

"Although there were the usual limitations compared to Chairman Yang being physically present in court, they did not outweigh the ability of the court to have live evidence from Chairman Yang." — Per Vivian Ramsey IJ, Para 25

What evidence did the court consider in deciding the application?

The court considered a sequence of affidavits and practical steps taken to facilitate the proposed video-link testimony. The application was supported by the fifth affidavit of Russell Lee Pynn, an investment executive of the fourth defendant by original action, while the plaintiff filed the third affidavit of Wang Xuan objecting to the application. The court also noted that the solicitors and court IT staff liaised and tested the Shanghai link. (Paras 3, 11)

"The application was supported by the fifth affidavit of Russell Lee Pynn (“Mr Pynn”), an investment executive of the fourth defendant by original action.1 The plaintiff by original action, Bachmeer Capital Limited (“the Plaintiff”), objected to the evidence being given by video link and filed the third affidavit of Wang Xuan setting out the basis of their objection." — Per Vivian Ramsey IJ, Para 3

For Chairman Yang, the court considered additional evidence from Andrew Lee. That evidence included a medical certificate from Dr Chong Kiang at Raffles Medical, Shanghai, showing Parkinson’s disease and mobility issues, and a Chinese government notice concerning travel limitations for people in Chairman Yang’s position. The court also considered the practical fact that the video link ultimately worked well at trial. (Paras 22, 13)

The evidential picture was therefore not limited to assertions by counsel. The judge had before him documentary support for the claimed travel restrictions and health issues, as well as evidence of the technical feasibility of the link. That combination of factual and technical material was decisive for Chairman Yang, but not for Mr Lee, whose case rested only on convenience and cost. (Paras 16, 19, 21, 22, 25)

How did the court balance fairness, convenience, and the importance of live testimony?

The judgment makes clear that the court did not treat convenience as a sufficient reason in itself. The judge observed that many business meetings now take place by video conference, and that many case management conferences in the case had also been conducted that way, but he emphasized that courts and international tribunals still attach importance to seeing and assessing the demeanour of the witness as part of credibility assessment. That observation explains why the court was cautious about allowing video-link testimony merely to save time or cost. (Para 18)

"Whilst many meetings in the business world now take place by video conference, as did many of the Case Management Conferences in this case, courts and international tribunals still attach importance to being able to see and assess the demeanour of the witness as part of the assessment of the credibility of the witness’s evidence." — Per Vivian Ramsey IJ, Para 18

The court also noted that in international cases witnesses are frequently not located where the hearing takes place. That practical reality did not displace the statutory requirement, but it informed the court’s willingness to accommodate genuine inability to travel where the evidence was important and the link was reliable. The judgment thus reflects a calibrated approach: not a presumption for or against video-link evidence, but a fact-sensitive fairness analysis. (Para 17)

"In international cases it is frequently the case that witnesses are not located in the place where the hearing takes place." — Per Vivian Ramsey IJ, Para 17

For Mr Lee, the balance tipped against the application because the reason advanced was only convenience. For Chairman Yang, the balance tipped in favour because the inability to travel was supported by evidence, the technical arrangements were sound, and the court was satisfied that the parties would not be unfairly prejudiced. The judgment therefore demonstrates that fairness under s 62A is not a slogan; it is the operative standard. (Paras 19, 25, 6)

What did the court say about the quality and reliability of the Shanghai video link?

The court took active steps to ensure that the proposed link would work. The solicitors for the KOP Defendants liaised with the court IT staff, who tested the video link to the International Financial Centre in Shanghai. This was directly relevant to the statutory factor concerning administrative and technical facilities and arrangements at the place where the witness would give evidence. (Para 11)

"This led to liaison between the solicitors for the KOP Defendants and the court IT staff, who subsequently tested the video link to the International Financial Centre in Shanghai." — Per Vivian Ramsey IJ, Para 11

When Chairman Yang eventually testified, the court recorded that the preparation work was reflected in the good quality of the video link. That finding mattered because it confirmed that the technical side of the application had been properly addressed and that the court was not taking a speculative risk with the integrity of the evidence. (Para 13)

"In the event, the preparation work carried out by the IT staff was reflected in the good quality video link which was in place when Chairman Yang eventually testified by video link at trial." — Per Vivian Ramsey IJ, Para 13

The judgment does not suggest that technical adequacy alone would justify an order. Rather, technical adequacy was one component of the broader statutory inquiry. In this case, it supported the conclusion that Chairman Yang’s evidence could be received fairly and effectively, whereas Mr Lee’s application still failed because the reason for his non-attendance was inadequate. (Paras 6, 13, 19, 25)

What was the final order and what happened on costs?

The final order was split. The court allowed the application in respect of Chairman Yang but not in respect of Mr Lee. The judge expressly stated that costs of the application were reserved until the conclusion of the trial. This meant that the costs consequences would be determined later, in light of the overall outcome and the conduct of the proceedings. (Para 26)

"For the above reasons, I allowed the application in respect of Chairman Yang but not in respect of Mr Lee. Costs of this application are reserved until the conclusion of the trial." — Per Vivian Ramsey IJ, Para 26

The reservation of costs is consistent with the interlocutory nature of the application. The court had to decide a procedural issue affecting trial evidence, but it did not finally determine the parties’ substantive rights. Reserving costs allowed the trial court to take a holistic view at the end of the case. (Para 26)

Why does this case matter for cross-border commercial litigation?

This case matters because it shows how the Singapore International Commercial Court applies s 62A of the Evidence Act in a cross-border setting where witnesses are abroad and the parties seek procedural flexibility. The judgment confirms that the court will not allow video-link testimony merely because it is convenient or cheaper; there must be a genuine reason why the witness cannot attend in Singapore, and the court must remain satisfied that the proceedings will be fair. (Paras 6, 19, 25)

At the same time, the case shows that the court is willing to accommodate genuine travel constraints, especially where the witness’s evidence is important and the technical arrangements are reliable. The decision therefore provides practical guidance for litigators seeking remote testimony: they must produce evidence of the inability to travel, address technical logistics, and show that the opposing party will not be unfairly prejudiced. (Paras 9, 11, 13, 21, 22, 25)

More broadly, the judgment reflects the realities of international litigation. The court acknowledged that witnesses are often located outside the forum and that modern technology can facilitate evidence-taking, but it preserved the traditional judicial concern with demeanour, credibility, and fairness. That balance is likely to remain important in future applications for remote testimony. (Paras 17, 18, 6)

Cases Referred To

Legislation Referenced

• Evidence Act (Cap. 97, 1997 Rev Ed), s 62A, including subsections (1), (2), and (5) (Para 6) [CDN] [SSO]
• Rules of Court (Cap. 322, R 5, 2014 Rev Ed), Order 109 rule 6, especially O 109 r 6(1)(f) (Para 7)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2018] SGHCI 1 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.