Shen v Xia: Setting Aside Service & Jurisdiction in Misappropriation Claim
Ms. Sophie Shen sued Xia Wei Ping, Li Zhe, and Alpheus Management Limited for alleged misappropriation of her share of sale proceeds from Western Water Corporation (WWC). The High Court of Singapore, General Division, heard applications to set aside the service of the Writ of Summons. Goh Yihan JC set aside the Service Out Order, finding that the US was a more appropriate forum for the trial.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Service Out Order set aside.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court sets aside service out of jurisdiction for a misappropriation claim, finding the US a more appropriate forum.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Sophie Shen (formerly known as Sophie Luo) | Plaintiff | Individual | Service Out Order set aside | Lost | Wee Xunji |
| Xia Wei Ping | Defendant | Individual | Application allowed | Won | Poon Guokun Nicholas, Chan Michael Karfai |
| Li Zhe | Defendant | Individual | Unknown | Neutral | |
| Alpheus Management Limited | Defendant | Corporation | Application allowed | Won | Tay Wei Loong Julian, Wong Wai Keong Anthony, Kang Su-Lin |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Goh Yihan | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Wee Xunji | CK Tan Law Corporation |
| Poon Guokun Nicholas | Breakpoint LLC |
| Chan Michael Karfai | Breakpoint LLC |
| Tay Wei Loong Julian | Lee & Lee |
| Wong Wai Keong Anthony | Lee & Lee |
| Kang Su-Lin | Lee & Lee |
4. Facts
- The plaintiff sued the defendants for misappropriation of her share of sale proceeds from WWC.
- The plaintiff claimed to be the beneficial owner of around 70% of the shares in WWC.
- WWC was sold to Goldwind for approximately US$100m in 2017.
- The Sale Proceeds were deposited into the third defendant’s OCBC Bank Account in Singapore.
- The plaintiff alleges that the defendants conspired to deprive her of her rightful share of the Sale Proceeds.
- The plaintiff commenced proceedings in the US and China relating to the same dispute.
5. Formal Citations
- Shen Sophie v Xia Wei Ping and others, Suit No 692 of 2021 (Summonses Nos 1092 and 1856 of 2022), [2022] SGHC 206
6. Timeline
| Date | Event |
|---|---|
| Writ of Summons dated filed | |
| Mareva injunction granted and leave given to serve out of jurisdiction | |
| Plaintiff instructed US process servers to effect personal service of the Writ on the first defendant | |
| Writ served on the third defendant at its BVI registered address by registered courier | |
| Plaintiff filed application for extension of time to file memorandum of service of the Writ on the third defendant | |
| High Court directed that the plaintiff’s solicitors file a supplemental affidavit | |
| Plaintiff filed a memorandum of service stating that the Writ was served on the third defendant | |
| Plaintiff’s solicitors filed an affidavit stating that the first defendant’s dwelling house address is in the US | |
| Plaintiff attempted personal service on the first defendant on various occasions | |
| Plaintiff filed application for leave to effect substituted service of the Writ | |
| Assistant registrar allowed Summons 744 | |
| Plaintiff’s process server mailed the Summons 744 Service Documents to the first defendant’s address | |
| Notice was left at the first defendant’s address because there was apparently no authorised recipient present | |
| HC/SUM 1092/2022 filed | |
| Plaintiff filed a memorandum of service which stated that the method of service on the first defendant was by US Postal Service Certified Mail | |
| HC/SUM 1856/2022 filed | |
| Hearing date | |
| Judgment reserved |
7. Legal Issues
- Jurisdiction
- Outcome: The court found that Singapore was not the natural forum and set aside the Service Out Order.
- Category: Jurisdictional
- Sub-Issues:
- Service out of jurisdiction
- Natural forum
- Tort of Conspiracy
- Outcome: The court found that the plaintiff had not made out an arguable case that her claim falls within O 11 r 1(f)(i) of the ROC.
- Category: Substantive
- Breach of Fiduciary Duty
- Outcome: The court found that the plaintiff had not made out an arguable case that her claim falls within O 11 r 1(o) of the ROC.
- Category: Substantive
8. Remedies Sought
- Monetary damages
- Account of profits
- Constructive trust over the Sale Proceeds
9. Cause of Actions
- Misappropriation
- Breach of Fiduciary Duty
- Conspiracy to injure
10. Practice Areas
- Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Recovery Vehicle 1 Pte Ltd v Industries Chimiques Du Senegal and another appeal and another matter | Court of Appeal | Yes | [2021] 1 SLR 342 | Singapore | Cited for the principle that a court is not to consider the requirements for service out of jurisdiction in isolation. |
| Shanghai Turbo Enterprises Ltd v Liu Ming | Court of Appeal | Yes | [2019] 1 SLR 779 | Singapore | Cited for the principle that the plaintiff is required to give full and frank disclosure of material facts in ex parte applications to serve out of jurisdiction. |
| Zoom Communications Ltd v Broadcast Solutions Pte Ltd | Court of Appeal | Yes | [2014] 4 SLR 500 | Singapore | Cited for the principle that the plaintiff still bears the burden of demonstrating the requirements for service out of jurisdiction at the inter partes stage. |
| IM Skaugen SE and another v MAN Diesel & Turbo SE and another | High Court | Yes | [2018] SGHC 123 | Singapore | Cited for the principle that the plaintiff may rely on a new cause of action and/or additional O 11 r 1 heads of jurisdiction that was not included in the ex parte application, without the need to file a fresh originating process in respect of the same. |
| MAN Diesel & Turbo SE and another v IM Skaugen SE and another | Court of Appeal | Yes | [2020] 1 SLR 327 | Singapore | Cited for the principle that the court can consider subsequent developments that are relevant to the forum non conveniens analysis and which occurred after the ex parte leave to serve out of Singapore was granted. |
| JIO Minerals FZC and others v Mineral Enterprises Ltd | Court of Appeal | Yes | [2011] 1 SLR 391 | Singapore | Cited for the choice of law rule that Singapore courts apply for torts is the double actionability rule. |
| Nippon Catalyst Pte Ltd v PT Trans-Pacific Petrochemical Indotama and another | High Court | Yes | [2018] SGHC 126 | Singapore | Cited for the observation that the double actionability rule is irrelevant for service out of jurisdiction applications. |
| Vibrant Group Ltd v Tong Chi Ho and others | High Court Registry | Yes | [2022] SGHCR 8 | Singapore | Cited for the position that the double actionability rule is irrelevant for service out of jurisdiction applications. |
| Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc | English Court of Appeal | Yes | [1990] 1 QB 391 | England | Cited for the principle that the double actionability rule is relevant to the analysis of whether a claim comes under the tort jurisdictional gateway in Ord 11 r 1(1)(f). |
| Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd | Court of Appeal | Yes | [2018] 2 SLR 1271 | Singapore | Cited for the principle that the “arguable case” standard in O 11 of the ROC requires the plaintiff to have “the better of the argument”. |
| Bradley Lomas Electrolok Ltd and another v Colt Ventilation East Asia Pte Ltd and others | Court of Appeal | Yes | [1999] 3 SLR(R) 1156 | Singapore | Cited for the principle that the plaintiff must establish that there is a serious question to be tried on the merits. |
| Spiliada Maritime Corporation v Cansulex Ltd | UK House of Lords | Yes | [1987] AC 460 | United Kingdom | Cited for the common law principles of ad hoc allocation of jurisdiction. |
| Rappo, Tania v Accent Delight International Ltd and another and another appeal | Court of Appeal | Yes | [2017] 2 SLR 265 | Singapore | Cited for the principle that the quality of connecting factors is crucial in Stage One of the Spiliada test. |
| JIO Minerals FZC and others v Mineral Enterprises Ltd | Court of Appeal | Yes | [2011] 1 SLR 391 | Singapore | Cited for the conventional grouping of the connecting factors into the five categories of personal connections, connections to events and transactions, governing law, other proceedings, and shape of the litigation. |
| Ivanishvili, Bidzina and others v Credit Suisse Trust Ltd | Court of Appeal | Yes | [2020] 2 SLR 638 | Singapore | Cited for the principle that in disputes involving well-heeled parties who have a high degree of mobility, the current domicile of the parties may be of little legal significance. |
| Rickshaw Investments Ltd and another v Nicolai Baron von Uexkull | Court of Appeal | Yes | [2007] 1 SLR(R) 377 | Singapore | Cited for the principle that the significance of the location of witnesses will turn on whether the main dispute is largely factual in nature. |
| Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra | Court of Appeal | Yes | [2019] 2 SLR 372 | Singapore | Cited for the principle that another equally important, if not more important consideration, is the compellability of key witnesses who reside abroad. |
| EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another | Court of Appeal | Yes | [2014] 1 SLR 860 | Singapore | Cited for the principle that the Singapore courts have taken notice, at least for jurisdictional purposes, that the contents of foreign law may differ from the law of the forum even in the absence of proof. |
| Multi-Code Electronics Industries (M) Bhd and another v Toh Chun Toh Gordon and others | High Court | Yes | [2009] 1 SLR(R) 1000 | Singapore | Cited for the principle that the Singapore courts have taken notice, at least for jurisdictional purposes, that the contents of foreign law may differ from the law of the forum even in the absence of proof. |
| Sinco Technologies Pte Ltd v Singapore Chi Cheng Pte Ltd and another | High Court | Yes | [2017] SGHC 234 | Singapore | Cited for the principle that the case at hand also deals potentially with Chinese law which is a civil law jurisdiction, and this court (or even the Singapore International Commercial Court) would be less familiar to deal with that aspect. |
| EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another | Court of Appeal | Yes | [2014] 1 SLR 860 | Singapore | Cited for the key factors to consider for the tort of conspiracy include the “identity, importance and location of the conspirators, the locations where any agreements or combinations took place, the nature and places of the concerted acts or means, the location of the plaintiff and the places where the plaintiff suffered losses”. |
| Wing Hak Man and another v Bio-Treat Technology Ltd and others | High Court | Yes | [2009] 1 SLR(R) 446 | Singapore | Cited for the key factors to consider for the tort of conspiracy include the “identity, importance and location of the conspirators, the locations where any agreements or combinations took place, the nature and places of the concerted acts or means, the location of the plaintiff and the places where the plaintiff suffered losses”. |
| Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others and another appeal (Jesus Angel Guerra Mendez, non-party) | Court of Appeal | Yes | [2020] 1 SLR 226 | Singapore | Cited for the principle that the place where the tort occurred is prima facie the natural forum for the tort claim. |
| Yeoh Poh San and another v Won Siok Wan | High Court | Yes | [2002] SGHC 196 | Singapore | Cited for the principle that at the interlocutory stage and before all the evidence is taken, I am entitled to decide the present Summonses based on a prima facie view on the governing law. |
| EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another | Court of Appeal | Yes | [2014] 1 SLR 860 | Singapore | Cited for the principle that the Singapore courts have taken notice, at least for jurisdictional purposes, that the contents of foreign law may differ from the law of the forum even in the absence of proof. |
| Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others and another appeal (Jesus Angel Guerra Mendez, non-party) | Court of Appeal | Yes | [2020] 1 SLR 226 | Singapore | Cited for the principle that there has been some controversy as to whether Stage Two of the Spiliada test applies to service out of jurisdiction cases where the plaintiff is unable to show that Singapore is the prima facie natural forum under Stage One. |
| Allenger, Shiona (trustee-in-bankruptcy of the estate of Pelletier, Richard Paul Joseph) v Pelletier, Olga and another | High Court | Yes | [2022] 3 SLR 353 | Singapore | Cited for the principle that there has been some controversy as to whether Stage Two of the Spiliada test applies to service out of jurisdiction cases where the plaintiff is unable to show that Singapore is the prima facie natural forum under Stage One. |
| Good Earth Agricultural Co Ltd v Novus International Pte Ltd | Court of Appeal | Yes | [2008] 2 SLR(R) 711 | Singapore | Cited for the principle that the court must proceed cautiously before it pronounces that a litigant will experience a deprivation of substantial justice if left to seek recourse in an appropriate foreign forum. |
| Rappo Tania v Accent Delight International Ltd and another and another appeal | Court of Appeal | Yes | [2017] 2 SLR 265 | Singapore | Cited for the principle that the foreign forum operates a well-established and well-recognised system of justice, in line with the principle of international comity. |
| Bi Xiaoqiong (in her personal capacity and as trustees of Xiao Qiong Bi Trust and the Alisa Wu Irrevocable Trust) v China Medical Technologies, Inc (in liquidation) and another | Court of Appeal | Yes | [2019] 2 SLR 595 | Singapore | Cited for the principle that the High Court’s power to grant the injunction is conditional upon the court having in personam jurisdiction over the foreign defendant in the first place. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Supreme Court of Judicature Act 1969 | Singapore |
| Rules of Court | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Service out of jurisdiction
- Natural forum
- Mareva injunction
- Writ of Summons
- Sale Proceeds
- Western Water Corporation
- OCBC Bank Account
- Double actionability rule
- Spiliada test
15.2 Keywords
- Jurisdiction
- Conflict of Laws
- Service out of jurisdiction
- Misappropriation
- Singapore High Court
16. Subjects
- Conflict of Laws
- Civil Procedure
- Jurisdiction
- Trusts
- Torts
17. Areas of Law
- Conflict of Laws
- Civil Procedure
- Jurisdiction
- Natural forum
- Service out of jurisdiction