Marina Bay Sands Pte Ltd v. Tsang Yeuk Kwan

HCA 195/2025

[2025] HKCFI 4558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 195 OF 2025

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D E C I S I O N

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1.There are 2 matters before the Court:

(i)  the appeal of Tsang Yeuk Kwan (“D”) from Master KW Wong’s dismissal on 4 June 2025 (the “Order”) of D’s summons dated 17 March 2025 (the “Stay Summons”) to grant a stay of the present proceedings in favour of the Singapore court on forum non conveniens (“FNC”) grounds; and

(ii)  D’s summons dated 19 August 2025 (the “New Evidence Summons”) for filing new evidence (comprising a letter from Terra Law LLC (“TLL”), a Singaporean law firm representing D, to P dated 18 August 2025 (the “pre-action letter”), a draft Originating Claim (the “Draft Claim”) and D’s 3^rd affirmation dated 19 August 2025[1] (“Tsang 3^rd”)) (collectively, the “New Evidence”).

Relevant background

2.Marina Bay Sands Pte Ltd (“P”) operates a gaming resort (the “Casino”) in Singapore.

3.D is a Hong Kong permanent resident and was a credit patron of the Casino.

4.Pursuant to a credit agreement dated 27 June 2016 (the “Agreement”) made between P and D governed by Singapore laws, in August 2024, P advanced sums totalling SGD 6,298,532 in the form of gaming chips to D. Those sums are evidenced by markers (being negotiable instruments) signed by D.

5.Taking into account partial repayments D made, the total outstanding amount as at 13 March 2025 was SGD 6,058,132 (the “debt”).

Procedural summary

6.After P filed the writ on 4 February 2025 in the present proceedings to recover the debt, interest and costs, the following events took place:

(i)  On 13 March 2025, P issued a summons for summary judgment (“O.14 summons”).

(ii)  On 17 March 2025, D filed the Stay Summons and his affirmation dated 10 March 2025 (“Tsang 1^st”), §11 of which sought to give evidence on the effect of section 5 of the Civil Law Act (Cap 43, 1999 Rev Ed).

(iii)  At the hearing on 21 March 2025, the Registrar ordered, inter alia, that §11 of Tsang 1^st be expunged on the ground that D “is not competent to give evidence on foreign law and such evidence is inadmissible”, and gave leave to D to file a Supplemental Affirmation in support on Singaporean Law within 21 days.

(iv)  On 11 April 2025, Li Cheuk Wai, D’s solicitor, filed an affirmation to exhibit a “Letter of Submission” of even date from Patrick Ee of TLL (the “April Letter”).

(v)  On 4 June 2025, the Master dismissed the Stay Summons and restored the hearing of the O.14 Summons that was stayed sine die pending the determination of the Stay Summons.

(vi)  On 18 June 2025, D filed a notice of appeal (the “NOA”) against the Master’s dismissal of the Stay Summons.

(vii)  On 19 August 2025, D filed the New Evidence Summons seeking leave to admit the New Evidence.

(viii)  On the day of the substantive hearing of the O.14 Summons fixed for 9 September 2025, the Master made an order by consent adjourning the substantive hearing to a date to be fixed pending the determination of the NOA.

The New Evidence - general principles

7.Mr Vincent Law (“Mr Law”) and Mr Johnson Ng, both Solicitor Advocates of Johnson Stokes & Master, solicitors representing P, do not dispute the general principles as set out in §18 of the written submissions dated 26 August 2025 of Mr Victor Dawes SC and Mr Cedric Yeung, counsel for D.

8.RHC O. 58 r. 1(5) provides that no further evidence (other than evidence as to matters that have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal except on “special grounds”.

9.The principles relevant to the application of the exception mentioned are largely derived from the English Court of Appeal’s decision in Hughes v Singh, The Times, 21 April 1989. The relevant holdings are summarised in the annotation in Hong Kong Civil Procedure 2025 (“HKCP 2025”) at §59/10/13 which, in pertinent part, states as follows:

“Exception of “evidence as to matters which have occurred after the date of the trial hearing” —

…

In Hughes v Singh, The Times, 21 April 1989, the Court of Appeal considered the authorities in relation to admission of fresh evidence of matters which occurred after trial and held:

(1) The Court of Appeal has a wide discretion in relation to admitting such fresh evidence, but it should always be exercised sparingly with due regard to the need for finality in litigation.

(2) It is impossible to produce an exhaustive list of the considerations relevant to the exercise of that discretion, but the following factors will always be material: —

…

(iii) The conduct of the parties; any inequitable conduct on the part of a litigant will plainly be relevant, and other conduct may also be relevant.

(3) The evidence should be admitted in all cases where it would be an affront to one's sense of fairness not to admit it. In applying that test the court takes into account all the circumstances, before, during and after trial.

(NB Hughes v Singh was concerned with evidence of an event (namely the discharge of the plaintiff from the police force on medical grounds) which had occurred after trial. Accordingly, the Ladd v Marshall conditions did not apply. The approach in Hughes v Singh would not apply to cases governed by Ladd v Marshall.

…

The words ‘evidence as to matters which have occurred after the date of the trial or hearing’ do not cover evidence coming to light after the trial, as to matters which occurred before trial. In the case of such evidence, it cannot be adduced on the appeal unless the Ladd v Marshall conditions are satisfied.”

10.The parties differ as to the application of those principles.

11.Mr Dawes SC submits that the “special grounds” requirement does not apply to the New Evidence because it relates to precursor steps taken by D to bring legal proceedings against P; and they occurred on 18 August 2025 more than 2 months after the date of Order.

12.The precursor steps refer to a notice period mandated by §11 of the Agreement (the “asymmetric jurisdiction clause”) in circumstances where D intends to commence any action against P. That clause provides as follows:

“11. [P] may bring an action relating to any dispute with [D] in Singapore, or in its sole discretion, another jurisdiction. All disputes of or raised by [D] against [P], whether or not arising from or related to this Agreement, shall be subject to the exclusive jurisdiction of the Courts of Singapore. This Agreement shall be governed by the laws of Singapore without regard to any conflicts of laws principles. [D] shall give 30 days’ written notice of any intention to commence any claim, action or proceedings against [P], failing which [P] shall be entitled to dismiss, enjoin or permanently stay such claim, action or proceedings …”

13.D further submits that the New Evidence is highly material to the Stay Summons. To exclude it would travesty of justice in that the New Evidence intimates a serious risk of parallel proceedings in Hong Kong and in Singapore concerning overlapping facts and issues. Further, D has no choice in the matter, the Singapore court being the only forum available to adjudicate D’s claims under the Agreement.

14.Mr Law disagrees, highlighting the fact that the discretion is exercised sparingly with regard to the need for finality in litigation and the Court would consider factors such as the timing when the new evidence emerged and the conduct of the parties.

15.P further submits that the existence of other relevant proceedings already pending in another forum:

“may be of no relevance at all, for example, if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction, or the proceedings have not passed beyond the stage of the initiating process”

See per Lord Goff of Chieveley in De Dampierre v De Dampierre [1988] AC 92 at 108C cited by Kwan VP in Bright Shipping Ltd v Changhong Group (HK) Ltd (No. 2) [2019] 5 HKLRD 30 at §34.

16.Currently, there are no foreign proceedings on foot. All the pre-action letter and Draft Claim show is D’s intention to do so once the 30-day notice period expires. In this connection, the timing for issuing the pre-action letter invites scrutiny.

The New Evidence Summons

17.It is clear that D had access to advice on Singaporean law, at the latest, since 11 April 2025: see the April Letter.

18.Mr Dawes SC referred to Tsang 3^rd (at §7) to explain that there was a change in the approach by reason of the new legal advice. §7, in pertinent part, states:

“[U]pon the Stay Summons being dismissed at first instance, I received further advice and verily believe that this is not a viable course of action, and that I should commence a fresh action in Singapore in order to pursue my intended claims above. In particular, I am debarred from raising my counterclaim against [P] in the present proceedings by reason of Clause 11 of the Credit Agreement which provides … and which therefore mandates my intended claims above to be brought in the Singapore court.”

19.The suggestion of “new legal advice” rendered after the Order is problematic.

20.The April Letter had identified (at §§24-25) D’s defence/causes of action against P, namely, for having committed regulatory breaches of various Singaporean Regulations identified in the April Letter including Regulation 17 of the Casino Control (Conduct of Gaming) Regulations 2009 (“Regulation 17”).

21.Regulation 17[2] provides as follows:

“Gaming by intoxicated persons prohibited

17. A casino operator must not permit a person is in a state of intoxication to participate in any gaming activity within its casino premises.”

22.Having earlier[3] referred to the asymmetric jurisdiction clause, TLL even highlighted[4] the following part of that clause:

“all disputes of or raised by [D] against [P], whether or not arising from or related to this Agreement, shall be subject to the exclusive jurisdiction of the Courts of Singapore.”

23.In the circumstances, that TLL did not appreciate that D’s claims against P it had identified must be made in Singapore proceedings rather than in the Hong Kong proceedings that were already on foot when it wrote the April Letter is hardly credible.

24.There is no evidence as to when the ‘change in approach’ is said to have occurred. Nevertheless, it is relevant to note that the NOA itself contemplates that proceedings be conducted in another court, namely, The General Division of the High Court of The Republic of Singapore.

25.D filed his NOA on 18 June 2025[5], presumably pursuant to the “new legal advice”.

26.What I find troubling is that D and his Singaporean legal advisers were well aware of the asymmetric jurisdiction clause from inception since it had featured not only in Tsang 1^st[6]but also in the April Letter[7].

27.Even assuming (giving D the benefit of the doubt) that the asymmetric jurisdiction clause was somehow overlooked or that some error had occurred (which is not a valid excuse), there is no explanation why it took almost another 2 months after the filing of the NOA before D issued the pre-action letter and Draft Claim.

28.In fact, the Endorsement of Claim in the Draft Claim replicates the regulatory breaches that TLL had already identified some 4 months earlier in the April Letter[8] and thus well before the hearing before the Master. Moreover, the Endorsement added nothing new: the reference to intoxication was nothing more than a reference to the subject matter of Regulation 17 that, incidentally, did not state any consequence for breach. The word “unenforceable” in the Draft Claim appears to be D’s gloss on the effect of Regulation 17.

29.Even if the Notice of Intent and the Draft Claim were not yet in existence when D filed his NOA, no reason justifying the two-month delay for preparing them has been forthcoming. Seemingly, D was not in a hurry to get the foreign proceedings on foot.

30.In the absence of any credible explanation for the delay, the timing (which was within D’s exclusive control) inevitably suggests that it was deliberate and, conveniently, this hearing happens to fall within the notice period.

Conclusion

31.I find D’s conduct in the present case unacceptable. The Court should not condone such conduct. D was well aware of the asymmetric jurisdiction clause but chose not to pursue his claims in Singapore and raise the FNC point much earlier. Had he done that, it would have saved considerable judicial time and resources. Instead, D presented the New Evidence as something new that arose well after the date of the Order when, in substance, it was not.

32.I refuse D’s application to file the New Evidence. I do not agree that to exclude it would be a travesty of justice. D only has himself to blame for this outcome.

33.Accordingly, I make an order dismissing the New Evidence Summons.

The Stay Summons

34.On the basis that the New Evidence stands dismissed, the Stay Summons would be without foundation.

35.In the circumstances, I will only deal briefly with the main issues that arose at the hearing if (contrary to my view) the New Evidence Summons should be allowed.

The test for stage 1 of Spiliada

36.It is common ground that where the application under RHC O. 12 r. 8 is solely on the FNC ground, the 3-stage Spiliada test applies. P’s stance is that in relation to stage I of Spiliada, not only has the applicant to establish that first, Hong Kong is not the natural or appropriate forum but that there is another available forum which is “clearly or distinctly” more appropriate than Hong Kong.

37.Pausing there, as D readily acknowledged, its Stay Summons failed to identify the particular Court in favour of which a stay of the Hong Kong proceedings should be granted. There is also no indication of which Singapore Court is prepared to accept jurisdiction on the facts of this case and why: see Hwoo Huang Linda v Fu Being San [2013] 1 HKLRD 259 at §§55-56 where a stay was refused on that ground alone.

38.The parties accept that the onus is not “lightly discharged[9]”. Mr Dawes also referred to the formulation of Anthony Chan J (as he then was) in ING Bank NV v Industrial and Commercial Bank of China Limited [2024] HKCFI 2220, namely, it is “one of holistic evaluation of the relevant circumstances” where the Judge also observed that “it is not helpful to refer to the standard of proof[10]”. Nevertheless, where, as here, the parties have agreed to submit to the jurisdiction of the courts of any other forum, the Court of Appeal considered burden to be “a heavy one”[11].

39.In response to P’s submissions at §15 above and the citation from Bright Shipping, D submitted that it does not follow that all early-stage foreign proceedings are irrelevant for a proper analysis. Rather, the relevance must instead turn on the facts of the case but cited no authority in support.

Multiplicity of proceedings and the risk of inconsistent decisions

40.Mr Dawes placed considerable reliance on Lammas Global Corporation v Barclay’s Bank (Suisse) SA & Ors HCA 2411/2009, unrep., 13 April 2011 (the “LGC case”). In that case, the judge stayed Hong Kong proceedings on FNC grounds and further held that to allow the claim to proceed in Hong Kong against Barclays plc (the 2^nd defendant) would create a risk of inconsistent decisions. This decision must be viewed against the backdrop of the facts in that case.

41.LGC was an investment vehicle whose ultimate owner resided in the Philippines. It elected to open an account with Barclays Suisse (the 1^st defendant) (which was subject to an exclusive jurisdiction clause in favour of Switzerland) rather than with Barclays plc (the 2^nd defendant). LGC later invested in a hedge fund recommended by Barclays plc and suffered a total loss. It commenced proceedings in Hong Kong against, inter alia, Barclays Suisse and Barclays plc.

42.There are significant factual differences between the LGC case and the present case in the following respects:

(i)  LGC had claims against multiple defendants whereas in the present case there is only one defendant, D, and where D had expressly agreed to P commencing proceedings at its discretion in any jurisdiction (including Hong Kong).

(ii)  While representatives of both Barclays Suisse and Barclays plc met the ultimate owner of LGC in Hong Kong in 2002 before opening its account and again in 2004 when Barclays plc offered investment advice to LGC, eventually culminating in LGC’s investment in the fund it recommended, there was no connection with Hong Kong. Barclays plc did not even have a local representative office in Hong Kong until 2005. Even then, it did not undertake any banking business.

(iii)  In the present case, D is a Hong Kong resident and the evidence shows that his assets are in Hong Kong.

(iv)  The Swiss court had exclusive jurisdiction over claims against Barclays Suisse with whom LGC maintained its account and which (as the judge found) would accept jurisdiction over Barclays plc if LGC commenced proceedings in Switzerland.

(v)  LGC’s claims against Barclays Suisse and Barclays plc were so inter-related that the judge concluded they should be heard together to avoid a risk of inconsistent decisions. There is no such danger in the present case.

43.In my view, the LGC case is clearly distinguishable and does not assist D.

44.Moreover, one should not lose sight of the general rule in that a multiplicity proceedings is not of itself a material factor in an application made on the ground of FNC. It is only in exceptional circumstances where the existence of parallel proceedings might cause unusual hardship to a defendant that an action might be stayed: see Elite Consortium at §§23-24. D has not shown why the general rule does not apply: he has not shown that he would suffer “undue hardship”.

Foreign public policy

45.As to the substance of his application, D maintained that

(i)  the Singapore courts have a better understanding and are better placed to determine the issue as the Singapore court could do so without the assistance of any experts; and

(ii)  there would be little difficulty in enforcing a Singapore judgment in Hong Kong should P succeed as Singapore is one of the countries covered by the Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap 319.

46.In Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, Recorder Geoffrey Ma SC (as he then was) held (at 266F-267A:

“In cases where substantial and difficult issues of foreign law are involved, the court may well be compelled to stay the proceedings where there is an appreciable risk that justice will not be done ... It does not therefore follow at all that once it is shown that issues of foreign law arise, that this will necessarily be a powerful, much less a decisive, factor in favour of a stay … It is all a question of degree.”

47.In DP World Djibouti FZCO v China Merchants Port Holdings Company Limited [2019] HKCFI 3104, after citing the above passage (at §83), Mimmie Chan J held that:

“85. … it is incumbent on the Defendant as the applicant for stay to identify and articulate what the disputed issue of foreign law is, why there is an issue, so that the court can decide whether the issue is indeed as substantial or difficult as the Defendant contends, to compel a stay of the action on the basis that there is an appreciable risk that justice will not be done, as the Court might reach a wrong conclusion on an aspect of foreign law.

91. The need to consider public policy and public interests is one of the factors which the Court will include in its assessment of the relative appropriateness of the Hong Kong Court and the Djibouti Court. However, the existence of public policy considerations does not by itself mean that the Hong Kong Court would inevitably decline jurisdiction in favour of the foreign forum. Much will depend on the uniqueness of the policy consideration or the objective identified, and the complexities and circumstances of the case.

48.While HKCP 2025 at §11/1/111 states that where issues of foreign public policy are raised, the relevant foreign court is clearly or “almost necessarily” best placed to determine them, that practice is not immutable.

49.The issue in the present case turns on the proper interpretation of Singaporean legislation in relation to the regulation of casinos and the conduct of customers inside the casinos. D submitted that it requires knowledge of the underlying Singapore public policy and that is really a matter for the foreign court.

50.Regulation 17 was the focus at the hearing[12]. Its meaning, effect and application by the Singapore courts is a matter about which an expert conversant with Singapore gaming laws would have no difficulty in providing expert evidence.

51.Further, Regulation 17 is not a complex provision since it consists of a single sentence. There is no evidence identifying the difficulties that an expert would confront in explaining public policy underlying Singapore’s regulations in relation to the management and regulation of casinos and gaming activities in the casinos. Hong Kong Courts are accustomed to dealing with foreign law.

52.It should also be borne in mind that D consented to and gave P the discretion to bring its action against D in Singapore or another jurisdiction. Moreover, an important factor to be taken into consideration is the fact that D’s assets are in Hong Kong where he lives and carries on business. While a Singapore judgment in P’s favour is enforceable in Hong Kong, it is an obvious advantage to P in terms of time and costs to secure a Hong Kong judgment.

53.At the conclusion of his reply submissions, Mr Dawes raised an entirely new point. He was dismissive of D’s ‘agreement’ to P commencing proceedings elsewhere than in Singapore and submitted that this is the first time the Court is invited to consider in the FNC context -what is the effect of the asymmetrical jurisdiction clause - as in no other case has this issue arisen.

54.He sought confirmation from Mr Law of that state of affairs on the basis that Mr Law’s firm acts for the casinos and is involved in all the cases.

55.Taken by surprise, Mr Law referred to Wynn Las Vegas, LLC v Mong Henry HCA 190/2009, unrep., 24 June 2009 which contained a similarly worded jurisdiction clause. However, the clause did not turn out to be an exclusive jurisdiction clause.

56.As to the confirmation sought, understandably, Mr Law declined the invitation and did not accede to D’s request.

57.As I understand it, the underlying theme of the new point is that the asymmetric jurisdiction clause cannot take effect in the FNC context. In my view, if the point had any merit it would have featured prominently in D’s written submissions.

Conclusion

58.Had it been necessary to decide the Stay Summons, I would not have granted a stay for the reasons stated above.

Costs

59.I make an order nisi of costs in favour of P with certificate for counsel such costs be summarily assessed and payable forthwith.

60.I further direct that:

(i)  P do lodge and serve its costs statement within 14 days after the date of this Order;

(ii)  D do lodge and serve his list of objections (limited to 2 pages) within 7 days thereafter.

(iii)  there be summary assessment of costs by paper disposal without the need for an attendance.

Mr Vincent Law (Solicitor Advocate) and Mr Johnson Ng (Solicitor Advocate), of Messrs. Johnson Stokes & Master, for the Plaintiff

Mr Victor Dawes S.C. and Mr Cedric Yeung, instructed by Messrs. Li & Lai, former Solicitors for the Defendant