OCM Opportunities Fund II v Burhan Uray: Conspiracy, Fraud & Mareva Injunction

In OCM Opportunities Fund II, LP and Others v Burhan Uray (alias Wong Ming Kiong) and Others, the Singapore High Court heard applications to set aside an injunction and strike out the writ of summons and statement of claim. The plaintiffs, institutional investors, alleged that the defendants conspired to defraud them through fraudulent misrepresentations regarding the financial position of PT Daya Guna Samudera Tbk (D7), inducing them to purchase DGS Notes. The defendants denied the allegations and sought a stay of proceedings, arguing Singapore was not the appropriate forum. Justice Belinda Ang Saw Ean dismissed the applications to strike out the claim, stay the proceedings, and discharge the injunction, finding the plaintiffs had a good arguable case for conspiracy and that Singapore was an appropriate forum.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Applications to strike out or stay the proceedings as well as to discharge the injunction were dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

OCM Opportunities Fund II sues Burhan Uray for conspiracy and fraud related to DGS Notes. The court refused to strike out the claim or stay proceedings.

1.7 Decision Date

31 May 2004

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
OCM Opportunities Fund II, LP	Plaintiff	Limited Liability Partnership	Application to strike out claim dismissed	Neutral	Kabir Singh of Drew and Napier Davinder Singh of Drew and Napier Yarni Loi of Drew and Napier
Gryphon Domestic VI, LLC	Plaintiff	Corporation	Application to strike out claim dismissed	Neutral	Kabir Singh of Drew and Napier Davinder Singh of Drew and Napier Yarni Loi of Drew and Napier
Columbia / HCA Master Retirement Trust	Plaintiff	Trust	Application to strike out claim dismissed	Neutral	Kabir Singh of Drew and Napier Davinder Singh of Drew and Napier Yarni Loi of Drew and Napier
OCM Emerging Markets Fund, LP	Plaintiff	Limited Liability Partnership	Application to strike out claim dismissed	Neutral	Kabir Singh of Drew and Napier Davinder Singh of Drew and Napier Yarni Loi of Drew and Napier
ASO I (Delaware) LLC	Plaintiff	Limited Liability Partnership	Application to strike out claim dismissed	Neutral	Kabir Singh of Drew and Napier Davinder Singh of Drew and Napier Yarni Loi of Drew and Napier
Burhan Uray (alias Wong Ming Kiong)	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Soejono Varinata	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
H. Sudradjat Djajapert Junda	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Hendrik Burhan	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Joseph Siswanto	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
P.T. Daya Guna Samudera TBK	Defendant	Corporation	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
DGS International Finance Company BV	Defendant	Corporation	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
WMP Trading Pte Ltd	Defendant	Corporation	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Betty Pai alias Pai Sha	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Borneo Jaya Pte Ltd	Defendant	Corporation	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Natura Holdings Pte Ltd	Defendant	Corporation	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Joseph Wong Kiia Tai	Defendant	Individual	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Gary Chan Wei Long	Defendant	Individual	Application to strike out claim dismissed	Neutral	Shankar A S of Rajah Velu and Co
Handforth Profits Limited	Defendant	Corporation	Application to strike out claim dismissed	Neutral	Chelva Rajah of Tan Rajah and Cheah Jonathan Yuen of Straits Law Practice LLC Derrick Wong of Straits Law Practice LLC N Screenivasan of Straits Law Practice LLC
Rosmini bte Sulong	Defendant	Individual	Application to strike out claim dismissed	Neutral	Shankar A S of Rajah Velu and Co

3. Judges

Judge Name	Title	Delivered Judgment
Belinda Ang Saw Ean	Judge	Yes

4. Counsels

Counsel Name	Organization
Kabir Singh	Drew and Napier
Davinder Singh	Drew and Napier
Yarni Loi	Drew and Napier
Chelva Rajah	Tan Rajah and Cheah
Jonathan Yuen	Straits Law Practice LLC
Derrick Wong	Straits Law Practice LLC
N Screenivasan	Straits Law Practice LLC
Shankar A S	Rajah Velu and Co

4. Facts

Plaintiffs are institutional investors who purchased DGS Notes.
Defendants are alleged to have conspired to defraud the plaintiffs.
The alleged fraud involved misrepresentations about the financial position of D7.
DGS Notes were issued by D8 and guaranteed by D7.
The plaintiffs relied on false financial information when purchasing the DGS Notes.
D8 and D7 defaulted on coupon payments in June 2001.
The plaintiffs uncovered the alleged fraud after conducting investigations.

5. Formal Citations

OCM Opportunities Fund II, LP and Others v Burhan Uray (alias Wong Ming Kiong) and Others, Suit 50/2004, SIC 655/2004, 657/2004, [2004] SGHC 115

6. Timeline

Date	Event
1997-05-27	Offering circular for DGS Notes issued.
1997-05-28	DGS Notes issued by DGS International Finance Company BV.
1998-02-23	Plaintiffs began purchasing DGS Notes in the secondary market.
2000-03-01	Sham legal proceedings brought against the Singapore Defaulting Companies.
2001-05-16	Plaintiffs purchased DGS Notes in the secondary market.
2001-06-01	D8 and D7 defaulted on coupon payments.
2001-10-25	Ex parte injunction obtained in BMR proceedings.
2001-11-29	Injunction against D12, D13 and D14 discharged in BMR proceedings.
2003-04-14	Action in New York against D7 and D8 dismissed.
2004-01-19	Worldwide injunction granted to the plaintiffs.
2004-02-06	Defendants filed applications to set aside the injunction and strike out the writ of summons.
2004-02-14	Defendants filed applications to set aside the injunction and strike out the writ of summons.
2004-03-04	Resumed hearing regarding applications.
2004-03-05	Resumed hearing regarding applications.
2004-03-09	Defendants appealed against the decision.
2004-06-01	Judgment delivered.

7. Legal Issues

Conspiracy to Defraud
- Outcome: The court found that the plaintiffs had a good arguable case for conspiracy to defraud.
- Category: Substantive
- Sub-Issues:
  - Falsification of accounts
  - Misrepresentation of financial position
  - Misapplication of company funds
Stay of Proceedings
- Outcome: The court refused to stay the proceedings, finding that Singapore was an appropriate forum.
- Category: Procedural
Mareva Injunction
- Outcome: The court refused to discharge the Mareva injunction.
- Category: Procedural
- Sub-Issues:
  - Risk of dissipation of assets
  - Material non-disclosure

8. Remedies Sought

Monetary damages
Worldwide injunction

9. Cause of Actions

Conspiracy to defraud
Fraudulent misrepresentation

10. Practice Areas

Commercial Litigation
Injunctions

11. Industries

Finance

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Fatimi Pty Ltd v Bryant	Supreme Court of New South Wales	Yes	[2002] NSWSC 750	Australia	Cited for analysis of the tort of conspiracy to injure by unlawful means, specifically regarding the intent to cause injury.
Maritime Union of Australia v Geraldton Port Authority	Federal Court of Australia	Yes	(1999) 93 FCR 34	Australia	Cited regarding the requirement of specific intent in a conspiracy involving unlawful acts.
McWilliam v Penthouse Publication Ltd	New South Wales Court of Appeal	Yes	[2001] NSWCA 237	Australia	Cited regarding the requirement to establish intent to injure the plaintiff in a conspiracy case.
Lonrho plc v Fayed	House of Lords	Yes	[1992] 1 AC 448	United Kingdom	Cited as reaffirming the 'unlawful means' conspiracy.
Kuwait Oil Tanker Co SAK v Al Bader(No 3)	English Court of Appeal	Yes	[2000] 2 All ER (Comm) 271	United Kingdom	Cited for the definition of conspiracy to injure by unlawful means and the requirements for establishing such a claim.
Malaysian International Trading Corp Sdn Bhd v Interamerica Asia Pte Ltd	High Court	Yes	[2002] 4 SLR 537	Singapore	Cited for the application of the principles of the tort of conspiracy to injure by unlawful means in Singapore.
Bourgoin SA v Ministry of Agriculture, Fisheries and Food	Queen's Bench	Yes	[1986] QB 716	United Kingdom	Cited regarding the inference of intention when an act is done deliberately with knowledge of its consequences.
Bullman v Berkeley Homes (Essex) Ltd	Unknown	Yes	[2003] All ER (D) 132 (Apr)	United Kingdom	Cited regarding the requirement of intention to injure a class of persons in a conspiracy claim.
Vickery v Taylor	Supreme Court of New South Wales	Yes	(1910) 11 SR (NSW) 119	Australia	Cited regarding the remoteness of damage when a conspiracy is aimed at the public.
Commercial Banking Company of Sydney Limited v RH Brown & Company	High Court of Australia	Yes	(1972) 126 CLR 337	Australia	Cited regarding liability for misrepresentation made to a group to which the claimant belongs.
Andrews v Mockford	Queen's Bench	Yes	[1896] 1 QB 372	United Kingdom	Cited regarding an exception to the rule that an offer document is exhausted when shares are issued, specifically when it contains false statements intended to be acted upon by others.
The Tokai Maru	Court of Appeal	Yes	[1998] 3 SLR 105	Singapore	Cited regarding not preventing a party from proceeding with their case even if a strong defence exists.
Spiliada Maritime Corp v Cansulex Ltd (The Spiliada)	House of Lords	Yes	[1987] AC 460	United Kingdom	Cited for the principles regarding stay of proceedings and the appropriate forum for a case.
The Adhiguna Meranti	Unknown	Yes	[1988] 1 Lloyd’s Rep 384	Unknown	Cited for the emphasis on 'appropriate' rather than 'convenient' in determining the appropriate forum.
The Kapitan Shvetsov	Unknown	Yes	[1998] 1 Lloyd’s Rep 199	Unknown	Cited for the requirement that another forum must be distinctly more appropriate, not just marginally more appropriate.
Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd	Court of Appeal	Yes	[1998] 1 SLR 253	Singapore	Cited regarding the burden of proving that Singapore is the appropriate forum when contesting jurisdiction.
Possfund Custodian Trustee Ltd v Diamond	Unknown	Yes	[1996] 2 All ER 774	United Kingdom	Cited regarding an exception to the rule that an offer document is exhausted when shares are issued, specifically when it contains false statements intended to be acted upon by others.
Michaels v Taylor Woodrow Developments Ltd	Chancery Division	Yes	[2001] Ch 493	United Kingdom	Cited regarding not all wrongful or illegal acts would support an action for conspiracy by unlawful means.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 18 r 19(1)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

DGS Notes
Djajanti Group
Offering circular
Trade receivables
EBITDA
Mareva injunction
Unlawful means conspiracy
Singapore Defaulting Companies

15.2 Keywords

Conspiracy
Fraud
Injunction
DGS Notes
Singapore
OCM Opportunities Fund
Burhan Uray

17. Areas of Law

Area Name	Relevance Score
Civil Procedure	90
Fraud and Deceit	80
Injunctions	75
Material non-disclosure	60
Commercial Disputes	60
Asset Recovery	50
Contract Law	50
Asset Protection	40

16. Subjects

Civil Procedure
Injunctions
Conspiracy
Fraud