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Why video testimony from abroad is allowed: Apex court

Why video testimony from abroad is allowed: Apex court

Source: Straits Times
Article Date: 13 Feb 2020
Author: K.C. Vijayan

The High Court in 2018 had refused to let Mr Tejinder testify from Australia via video link, but in recognising the novel question of law posed by the video-link application, allowed leave for Mr Anil to appeal against the matter.

Singapore's top court has said that its decision to let an Australian give evidence for an appeal via video link rather than in person was not against public policy.

The man had said he feared prosecution if he came to Singapore.

His request involved two policy issues, said the Court of Appeal, in decision grounds released last Friday.

One is access to justice and the other is whether the court is helping a person evade justice by allowing him to give evidence from abroad.

The court noted that witness Tejinder Singh Sekhon, who is based in Australia, "had not been charged, let alone convicted".

Since he had not been convicted of any offence, he was entitled to be presumed innocent, and there was no basis to expect that he should return to Singapore to "face the music", said Judge of Appeal Judith Prakash on behalf of the court, which included Chief Justice Sundaresh Menon and Judge of Appeal Tay Yong Kwang.

"Bearing in mind that Singapore has extradition arrangements with Australia, it also follows that granting (Mr Tejinder) leave could not be seen as providing him with any assistance to evade justice," she added.

Mr Tejinder was prepared to testify as a witness for Singaporean Anil Singh Gurm in a lawsuit here on alleged negligence in relation to the legality of buying a semi-detached house in Serangoon Gardens.

He, however, feared that returning to Singapore might lead to prosecution over the same property purchase.

As a foreigner, Mr Tejinder could not buy the house in his own name, so he had Mr Anil do it.

Mr Anil acquired the $5.5 million house in his own name in 2006 and sold it shortly after Mr Tejinder relocated to Australia in May 2012.

The balance of the sale proceeds of about $3 million was remitted to Mr Tejinder in Australia.

In December 2012, the Commercial Affairs Department probed the purchase and some three years later, Mr Anil was charged with buying a property as a nominee for a foreigner with the intention to hold it in trust for the foreigner.

This is prohibited for restricted residential properties unless approval is obtained from the authority.

Mr Anil then sued the law firm and its lawyer who had advised him on the purchase. He now sought Mr Tejinder as his witness for the civil suit.

The High Court in 2018 had refused to let Mr Tejinder testify from Australia via video link, but in recognising the novel question of law posed by the video-link application, allowed leave for Mr Anil to appeal against the matter as it would be to "public advantage" for the top court to address the important issue.

At the appeal heard last year, both Senior Counsel Deborah Barker and lawyer Ushan Premaratne for Mr Anil, and lawyers Chandra Mohan and Ang Tze Phern for the respondents, agreed the court could legitimately take public policy into account when exercising its discretion under the relevant law.

The Court of Appeal said it was bound to consider "all the circumstances of the case" and listed several factors that outweighed the fact that Mr Tejinder was unwilling, rather than unable, to come to Singapore to give evidence. Among other things, the court noted that he was not a party to the suit and did not stand to benefit.

It also said that while it would be to Mr Anil's prejudice if the video evidence was refused, the respondents would have suffered no prejudice if leave were granted.

"In our view, any prejudice that the respondents would suffer in this case paled in comparison to the severe prejudice the appellant would suffer if they were denied the opportunity to adduce the evidence of an important witness," said Judge of Appeal Judith Prakash.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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