Abdul Rashid bin Abdul Manaf v Hii Yii Ann [2016] SGHCR 1
Signifiance: Singapore High Court sets out principles on the convenience and compellability of witnesses in determining forum non conveniens or natural forum for purposes of determining a stay of court proceedings.
The principles set out at [38] are as follows:-
(a) The availability of a witness can be considered as one of the factors in determining whether an action should be stayed (Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 478A), and the weight that this factor carries can vary depending on the facts of the case Spiliada at 482B). In this respect compellability is a factor that should not be conflated with convenience (JIO Minerals FZC and others v Mineral Enterprises Ltd [2011] 1 SLR 391 at [63]).
(b) A distinction must be drawn between the willing and unwilling (Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR(R) 381 (“Peter May”) at [27] and Gulf Oil Corporation v Gilbert 330 US 501 (1947) (“Gulf Oil”) at 508). One who asserts that a witness is willing to testify outside of his place of residence must prove this (SCT Technologies Pte Ltd v Western Copper Co Ltd [2015] SGCA 71 (“SCT Technologies”) at [17] and Spiliada at 476E); if this is neither asserted nor proven a witness will not be taken to be willing to testify outside of his place of residence Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 at [43], JIO Minerals, UBS AG v Telesto Investments Ltd and others and another matter [2011] 4 SLR 503 and Bunge SA and another v Indian Bank [2015] SGHC 330).
(c) Compellability can be a significant factor in the absence of assertion or proof that a witness is willing to testify outside of his place of residence. This is a fortiori if unwillingness is actually proved.
(i) Where a Singapore-resident witness is concerned, this points towards Singapore as the forum conveniens (Rickshaw Investments (at [23]) and UBS (at [68]–[70])). A Singapore resident witness is of course compellable in the Singapore courts.
(ii) Where a witness is resident in a jurisdiction outside of Singapore, this points towards that jurisdiction as the forum conveniens (JIO Minerals (at [74]) and Bunge (at [47])). Compellability under that jurisdiction’s law must be proven; but if not proven a court will take judicial notice that it is more likely for a witness to testify in the courts of his residence (JIO Minerals (at [73]–[74]) and Bunge (at [47])).
(d) Compellability is ordinarily not a significant factor if a witness is proven to be willing to testify outside of the place of her residence (Peter May at [27] and Gulf Oil at 508).