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Kamal Shashikant Shah v Bharat Dharmadas Kalwani - [2014] SGMC 2 (26 March 2014)

26 March 2014

Magistrate Karolyn Gin:

1 The Plaintiff applied for an interim injunction against the Defendant to restrain the Defendant and/or the Defendant’s servants and/or agents from harassing the Plaintiff and/or the Plaintiff’s family members. I granted the application and I now give my reasons.

2 The Plaintiff and the Defendant were friends. Various side bets were made between the parties. The Defendant sought to claim sums against the Plaintiff which the Plaintiff considered to be unenforceable by virtue of Section 5(1) of the Civil Law Act.

3 In his affidavit in support of the application, the Plaintiff claimed that the following instances of harassment resulted in mental distress to himself:

(i) Numerous visits by debt collectors;

(ii) SMS messages by the Defendant;

(iii) Various calls from private numbers; and

(iv) Threats in a meeting between the Plaintiff and Defendant.

4 Counsel for the Plaintiff argued that the Plaintiff’s application was based on the tort of harassment and that such a tort did exist. He relied on Malcomson Nicholas Hugh Bertram [2001] 3 SLR 379 (“ Malcomson ”) in which the issue was raised as to whether there was recourse against a person for harassment via modern communications. Whilst the court recognised that there was no established tort of harassment, it stated that there was no policy reason against the granting of relief to prevent such acts from occurring. The court further considered Arul Chandran v Gartshore [2000] SGHC 284 (“ Arul ”) and held that the statements therein against the recovery for mental distress in tort were obiter

5 In Tee Yok Kiat v Pang Min Seng [2013] SGCA 9 (“ Tee ”), the Court of Appeal referred to Malcomson . Although its comments were obiter , it was clear that the Court of Appeal had approved of such a tort and had even adopted the test for the same as laid down in Malcomson . The Court of Appeal concluded:-

“For the above reasons, we found that the tort of harassment would also have been made out on the evidence.”

6 Since the Court of Appeal had at some length considered the decision of Malcomson and had even gone on to conclude that the claim would have been made out, it would be highly unlikely for it to not follow its decision should the issue arise again.

7 Subsequently, in AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan [2013] SGHC 158 (“ AXA ”), His Honour Justice Choo Han Teck took the opposite view and decided that there was no basis or principle upon which the tort was founded.

8 As to which decision of the High Court I should follow, Counsel relied on Usman bin Ahmad v Chin Brothers Construction Co [2001] 1 MLJ 281 (“ Usman bin Ahmad ”). In that case, the Court held:-

“The Federal Court in Dalip Bhagwan Singh v PP [1997] 4 CLJ 645 held that the courts in the tiers below the Court of Appeal may choose between two conflicting decisions irrespective of the dates of those conflicting decisions. That decision gives the courts subordinate to the superior courts the discretion to make the choice, thus avoiding a possible deadlock or stalemate, without being disrespectful to the superior courts.”

9 In Dalip Bhagwan Singh v PP [1998] 1 MLJ 1 (“ Dalip Bhagwan Singh ”), the Court, after reviewing the applicable English authorities, stated:

“In this connection, it is interesting to refer to Cassell & Co v Broome [1972] UKHL 3; [1972] AC 1027 at p1054. It was held that courts in the lower tiers below the Court of Appeal could not rely on the per incuriam rule applied by the Court of Appeal for itself, but could choose between two conflicting decisions. We may add that they may so choose, whatever the dates of the conflicting decisions, as such dates do not matter to Court of Appeal itself.”

10 In the light of the above-mentioned Malaysia authorities and the absence of any local High Court authority cited by the Defendant, Counsel argued that it remained open to this Court to decide which High Court decision to follow. Since the recent Court of Appeal findings and the decision in Malcomson were entirely consistent with each other, Counsel for the Plaintiff submitted that I should follow those decisions.

11 Nevertheless, it was not necessary that this Court must follow one or either decision. The application before this Court was not a trial. It was an interlocutory application for an interim injunction and all that the Plaintiff needed to do was to pass the threshold test for the granting of such an injunction. The first limb of such a test is whether there is a serious question to be tried. As stated by the Authors of Singapore Civil Procedure (“the White Book”) at paragraph 29/1/1:

“It is no part of the court’s function at this stage of the litigation to resolve conflicts of evidence…. nor to decide difficult questions of law which call for detailed arguments and mature considerations. These are matters to be dealt with at trial.”

12 Further, as stated in the White Book at paragraph 29/1/12:

“The prospect of the Plaintiff’s success are to be investigated only to a limited extent. As pointed out by the High Court in Buckman Laboratories (Asia) Pte Ltd v Lee Wei Hoong [1999] 3 SLR 333, there is a low threshold…”

13 This court needed to only consider whether there was a serious question to be tried. The fact that there was a High Court decision ( Malcomson ) confirming the existence of such a tort (and supported by the Court of Appeal in Tee ) was more than sufficient to cross that particular threshold.

14 The second issue was where the balance of convenience lay. Counsel for the Plaintiff argued that the balance was clearly in favour of the Plaintiff. There was nothing to preclude the Defendant from pursuing legal avenues for his claim. He was also not precluded from making requests or communicating via solicitors. Further, there was nothing to be gained from further harassment of the Plaintiff as the Plaintiff’s position had been made clear.

15 As regards the adequacy of damages, the harassment was causing anxiety, embarrassment and shame to the Plaintiff as well as affecting his business. Not all of those were easy to quantify. In the circumstances, it would not be unjust for the injunction to be granted.

Counsel for the Defendant relied on AXA . In that case, the Honourable Choo Han Teck J (Choo J) carefully analysed the decision in Malcomson

16 Choo J’s decision could be summarised as follows:

(a) Choo J reviewed the cases Lee JC took into consideration in coming to the conclusion that such a tort existed. These cases included a series of English cases;

(b) In performing that review, Choo J noted that the law in England at the time was unsettled as to whether a tort of harassment existed. He pointed out that if there was no previous tort of harassment in existence, then the Court in Malcomson could not have recognised any such tort. If at all, Lee JC was creating an entirely new tort;

(c) At the time when Malcomson was decided, there were calls in the United Kingdom for the legislature to enact laws to protect against harassment. The Protection from Harassment Act was passed in 1977;

(d) Remedies against acts of harassment must necessarily be passed by the legislature, and these would be penal in nature;

(e) It was not for the court to formulate what may be termed as a “blockbuster tort”.

17 Accordingly, Choo J declined to make any orders on the cause of action pleaded as the tort of harassment.

18 Counsel for the Defendant submitted that when a lower Court is faced with two conflicting High Court decisions, it should prefer the later decision. The preference should be based on the following criteria:

(a) The later decision was reached after full consideration of the first decision; and, flowing from this,

(b) The later decision has considered all relevant material.

19 Reliance was placed on paragraph 7-013 of “Smith, Bailey and Gunn on the Modern English Legal System – Fourth Edition” (“Modern English Legal System”):

“However, it has been stated that where there are conflicting decisions of judges of co-ordinate jurisdiction, the later decision should thereafter be preferred, provided that it was reached after full consideration of the first decision: the only, rare, exception would be where the third judge was convicted that the second judge was wrong in not following the first, for example where some binding or persuasive authority had not been cited in either of the first two cases. This view has been cited with approval on a number of occasions, although it has been emphasised that the matter remain one of judicial comity.”

20 Choo J had fully considered Malcomson and even reviewed the preceding case law. He had taken into account all relevant factors. Hence, it was submitted that Choo J’s decision should be followed.

21 Counsel for the Defendant pointed out that mental distress was the only damage that was allegedly suffered by the Plaintiff. He relied on Arul in which Selvam J held that in respect of mental distress arising from breach of contract, mental suffering by itself did not constitute damage to found a cause of action. See also McGregor on Damages (Eighteenth Edition) which states that “Mental distress is not by itself sufficient damage to ground an action”. Given the current state of law, there was no serious question to be tried.

22 Counsel for the Defendant further submitted that the Plaintiff had not come close to reaching the minimum threshold of being entitled to an interim injunction for the following reasons:

(a) There was no evidence from the Plaintiff to establish conduct on the part of the debt collectors that was questionable.

(b) The Plaintiff called the police on each and every occasion. The police records would serve as evidence that would be contrary to the Plaintiff’s assertions.

(c) There was no evidence of the call record or where it emanated from.

23 Due to the lack of evidence, it was clear that the claim and correspondingly the application for an interim injunction was frivolous.

24 Counsel also argued that the Plaintiff was impecunious. The Plaintiff had admitted to being indebted to the Defendant and had not disputed indebtedness to other parties. He had not provided any undertaking for damages for the interim injunction. In addition, the Plaintiff had provided no evidence of damage suffered. Clearly, the balance fell in the Defendant’s favour. Accordingly, there was no legal and/or factual basis to grant the interim injunction.

25 The two-stage test to be applied in an application for an interim injunction is set out in American Cyanamid . I first have to be satisfied that there is a serious question to be tried. Paragraph 29/1/25 of Singapore Court Practice 2009 states:

“Clearly, the party will not be able to satisfy the court that there is a serious question to be tried unless he establishes that he has a cause of action…”

26 Counsel for the Defendant argued that the Plaintiff had not established a cause of action since the tort of harassment did not exist. There are two conflicting High Court decisions as to the existence of a tort of harassment in Singapore. Neither Counsel were able to point out any binding precedent on the question of which decision this Court should follow. Based on those factors alone, I was of the opinion that there was a serious question to be tried. It is not the function of the court at this stage to decide difficult questions of law which call for detailed arguments and mature considerations (see paragraph 29/1/1 of the White Book). Nevertheless, should I be wrong in my view, I proceeded to consider whether such a cause of action exists.

27 I applied the principle in Usman bin Ahmad (applying Dalip Bhagwan Singh ) that courts in the tiers below may choose between two conflicting decisions irrespective of the dates of those conflicting decisions.

28 How should a lower court choose between two conflicting decisions? Counsel for the Defendant referred to paragraph 7-013 of Smith, Bailey and Gunn on the Modern English Legal System-Fourth edition (“MELS”):

“..it has been stated that where there are conflicting decisions of judges of co-ordinate jurisdiction, the later decision should thereafter be preferred, provided that it was reached after full consideration of the first decision: …”

29 If not for the decision in Tee , I would have followed AXA as it was decided after a full consideration of Malcomson . However, the Court of Appeal in Tee appears to have implicitly accepted the tort of harassment. In that case, the Court of Appeal stated that although it was not strictly necessary for them to consider the alternative cause of action under the tort of harassment, they would nevertheless make some brief observations on it. The Court of Appeal noted that “the existence of the tort of harassment has been extensively explored by the High Court in Malcomson …. None of the parties questioned the existence of this tort in our law.” After setting out the elements of the tort and going into detail into the evidence, the Court of Appeal stated that the tort of harassment would also have been made out on the evidence.

30 When the Court of Appeal makes observations that are not binding in the time period between two conflicting High Court decisions, how should a lower court choose? On this issue, Counsel did not tender any case authorities binding on this Court.

31 I found guidance in paragraph 7-024 of Modern English Legal System. This addresses the question of whether lower tiers can rely on the exceptions to Young v Bristol Aeroplane Co. Ltd . There are conflicting dicta in the English cases as to what approach should be adopted. I adopted the approach suggested by Donaldson J in Uganda Co. (Holdings) Ltd v Government of Uganda [1979] 1 Lloyd’s Rep. 481 (see footnote in paragraph 7-024): a trial judge should “seek to anticipate how the Court of Appeal itself would…resolve the conflict”. This approach is appropriate as in Singapore, the Court of Appeal is the highest court in our land and should the issue ever be argued before it, its decision would bind all lower courts. It is particularly apt where the Court of Appeal has made observations that are directly on point.

32 Given the observations by the Court of Appeal in Tee that the existence of the tort of harrassment had been “extensively explored” in Malcomson and the depth to which the Court of Appeal went into the evidence to find that the tort would have been made out on the evidence, I would anticipate that the Court of Appeal would find in favour of the existence of such a tort of harrassment. Hence, I am of the view that such a tort exists.

33 As I found that the tort of harassment exists, it was not necessary to consider Arul . In any event, the statements therein were observations and not central to the decision.

34 The next issue to consider was whether, based on the affidavits, there was a serious question to be tried? There are numerous acts of harassment set out by the Plaintiff which pass the low threshold of the first limb of the test in American Cyanamid

35 First, there were a series of vulgar and/or threatening SMS messages that commenced in January 2013. Out of the many SMS messages filled with vulgarities, one had threatening overtones:

“ U fucking bastard when u owe money everywhere u should stay home…if I were u I drown myself in a glass of water fill with dog shit..I guess u are a thick skin bastard u are fucking lucky I was not that I would have fucked the days lights of u in front of everyone u better hope and pray I don’t see u at any party”

Another stated:

“When the fuck are u going to my money I have hold back my guys to talk to u til this weekend man u better make some time my guys are going to talk to u on how u are going to settle my money and for your own gd don’t give your bs”

36 Secondly, around the same time that these SMS messages were received, the parties met at Marina Bay Sands Hotel. According to the Plaintiff:

(a) The Defendant uttered vulgarities and threats against the Plaintiff and his family;

(b) The Defendant said that he knew where the Plaintiff’s family lived and where his children went to school and that they could be easily harmed;

(c) The Defendant said that he knew various gangsters that would be able to do his bidding if he wished.

37 Thirdly, there were many visits from debt collectors (twelve to the Plaintiff’s home and three to the Plaintiff’s tenant’s residence at Peach Garden over a short period from 29 July 2013 to 6 August 2013).

38 The actions of the debt collectors included throwing stones and cigarette butts, banging the gate and shouting during the visits to the Plaintiff’s residence. The Plaintiff states in his affidavit that these visits caused a significant amount of distress to him, his wife, his children and tenants.

39 In response, the Defendant has stated on affidavit that there is nothing wrong with sending a few SMS messages seeking the return of the admitted debt, no action had been taken against him by the police, the Plaintiff’s account of the meeting was untrue, the calls could have been from other creditors and if, which he did not admit, there had been unacceptable behaviour by the debt collectors he had sent, the Plaintiff should pursue them directly. The Defendant had not authorised the debt collectors to do unauthorised acts.

40 It is not the function of the court at this stage to resolve conflicts of evidence on affidavit as to facts. This is done at trial. “The court is concerned with whether the evidence reveals issues which may enable the plaintiff to succeed, rather than the actual strength of his case” (see paragraph 29/1/25 of Singapore Court Practice 2009).

41 Here, the totality of the evidence set out above does so reveal. While the affidavits of the parties conflict on some points (for example, what transpired at the meeting), it is not the function of the court at this stage to resolve such conflict. As regards the actions of the debt collectors, there is no affidavit by the debt collectors in response to the Plaintiff’s allegations. The most the Defendant states is that, if any unauthorised acts were committed, he did not authorise them. The SMS messages speak for themselves. I thus find that there is a serious question to be tried within the first limb of the American Cyanamid test.

42 The second limb of the test in American Cyanamid requires consideration of whether, if the injunction is refused, the Plaintiff will suffer greater hardship than the Defendant would (the “balance of convenience” test). This involves a consideration of whether damages would be an adequate remedy for the Plaintiff if the injunction was not granted. If such damages would not be adequate, I would need to further consider whether damages would be an adequate remedy for the Defendant if the injunction was granted and whether the Plaintiff would be in a financial position to pay them.

43 Taking into consideration the alleged acts of harassments and the resulting anxiety and distress, none of which are easy to quantify in monetary terms, I was of the view that if the Plaintiff were to succeed at trial, he would not be adequately compensated by damages.

44 Would damages be an adequate remedy for the Defendant if the injunction was granted and would the Plaintiff be in a financial position to pay them? The Defendant asserted in his affidavit that the Plaintiff was impecunious and indebted to other parties. Both these allegations were denied by the Plaintiff. Apart from his bare allegation, the Defendant did not exhibit anything to support his assertion. Further, in a subsequent affidavit, the Plaintiff gave an undertaking as to damages. Should the Defendant succeed at trial, I am of the opinion that he would be adequately compensated by damages for any loss sustained by being prevented from carrying out his acts between the time of the interim injunction and the time of trial.

45 Even if damages would not be an adequate remedy, I would still find that the balance of convenience lies in the Plaintiff’s favour. This is in the light of the effect harassment can have on the party concerned and others caught in the middle. In addition, there exists other legal avenues for redress that the Defendant could pursue for any claim he feels he has against the Plaintiff.

46 Thus, upon the Plaintiff making an undertaking as to damages, I ordered an injunction in favour of the Plaintiff restraining the Defendant (whether by himself, his servants or agents) from doing, procuring, inciting, abetting or encouraging any other person to do any of the following until trial of the action or further order:

(a) Making any contact with the Plaintiff and/or his family whether in writing or orally, whether by telephone or otherwise howsoever save that the Defendant (or his solicitors) may send written communication to the Plaintiff’s solicitors;

(b) From coming to or remaining within 50 meters of the Plaintiff’s residence being 5 Mayfield Avenue, Singapore 438019.

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