Judgment

JUDGMENT:

Towards the end of the last century, three brothers, Lee Wee Kheng, Lee Wee Nam and Lee Wee Kiat (hereinafter referred to as "Kheng" "Nam" and "Kiat" respectively), left their village in Canton province in China and came down south to Singapore to eke out a living and hopefully make their fortune. Kheng came first, followed by Nam and Kiat.

They established various businesses in Singapore including remittance shops and money lending. Their father, one Lee Hum Chye, subsequently also came to Singapore. Sometime in 1918 Lee Hum Chye gave all his savings to his three sons and established a kind of family fund called "Sze Teck Tng Chye Kee" (STTCK). Lee Hum Chye also wrote out the rules for STTCK, the pertinent parts of which (from agreed translation) read as follows:-

"... All the funds accumulated by me are to be given to the three sons ... I have instructed the trio to be of one heart as brothers and never to harbour any selfish intention ... Should there be achievements in future, all the funds left by me shall be channelled to Ser Teck T'ng as share capital. All monies made in future shall form the foundation for the financing in Ser Teck T'ng of the worshipping of ancestors on which I cherish much hope. Should there be sufficient funds in Ser Teck T'ng in future, an ancestral temple may be built, rice fields and houses may be bought so as to glorify the virtues of our ancestors."

He also laid down that the STTCK fund would be managed by the three sons on a rotational basis, each for a period of one year, starting with Kheng.

The STTCK rules were signed by Kheng on behalf of Lee Hum Chye. All the three sons were required and did separately subscribe their names to the rules "as proof of the mutual love between father and sons and also to serve as rules for (Hum Chye) and (his) posterity to observe from generation to generation without ever having any dispute over it." Lee Hum Chye died a year or two later.

The business endeavours of the three brothers were so successful that by 1927, they had amassed substantial wealth. That was also the year in which the three brothers decided to formally form a partnership under the name of Wee Kee Kongsi (the Kongsi). The assets of the partnership were to consist of all the properties and businesses of the three of them, which were valued at $1,282,500. That was obviously a huge sum then. The shares of the three brothers in the Kongsi were agreed as follows: Kheng : 4.5 shares Nam : 4 shares Kiat : 3 shares STTCK : 2.5 shares (Total : 13.5 shares)

From this division one can see that the three brothers had not forgotten the strictures of their father and thus provided for an appropriate share for ancestral worship (STTCK).

When forming the Kongsi, the three brothers had on 31 Jan 1927 set out the terms of the partnership in writing (exh P2). The relevant portions of the Agreement are the following (agreed translation from the original Chinese text):-

"In the latter part of the 12th lunar month in the year of Ping Yin, we have agreed to amalgamate our hardearned and accumulated savings and businesses etc under Wee Kee Company... It is agreed that two shares out of the 13+ shares of Wee Kee Company shall be set aside as sacrificial fund for Ser Teck T'ng Chai Kee to purchase properties in China for the worship of ancestor Hum Chye. It is further agreed that all the properties of the sacrificial fund set aside for the worship of ancestor Hum Chye shall be looked after and managed by the sons and grandsons who are direct descendants of anscestor Hum Chye. With fairness being uppermost in our mind, we, as brothers hereby make this agreement as proof. We further declare that all the properties purchased in the names of the brothers or partners and all the shares held in partnership businesses with other firms and all the rents and loans receivable are listed under 22 items which shall be taken as the capital of this company ....

the Wee Kee brothers, shall henceforth not dispute the facts that the various items of property/businesses are held in their names on behalf of the company and they hereby declare that all the appreciation or depreciation in the value of these properties or shares as well as all profits and losses in respect of these businesses shall concern only Wee Kee Company and shall have nothing to do with Lee Wee Kheng, Lee Wee Nam and Lee Wee Kiat personally."

The Agreement listed out the twenty-two items of assets and businesses of the partnership. The Agreement also provided that (i) if the company should wish to increase its shares in other firms or invest in a new firm, all the brothers must agree. If there was no concensus, such a venture should not be carried out. But a brother who wished to enter into such a venture might do so entirely on his own and not for the Kongsi; (ii) the three brothers were required to pay attention to the businesses held in other firms and should they discover any business to be unsuitable to continue with, any of the three brothers would have "full authority to withdraw the shares and retrieve the capital or terminate the business or endeavour to withdraw from the business"; (iii) any one of the brothers was entitled to represent STTCK.

It is clear that with the formation of the Kongsi the brothers had decided to pool all their resources and all businesses were to be treated as joint businesses of them all, to be shared in the proportions set out above.

In May 1927, a few months after the formation of the Kongsi, Kiat, the youngest brother, died. In October 1940, Kiat's estate executed a deed of release with Kheng and Nam, wherein the estate of Kiat for a consideration withdrew from the Kongsi and relinguished all interests therein. After this release the shares of Kheng, Nam and STTCK in the Kongsi were readjusted as follows: Kheng 9/21; Nam 8/21 and STTCK 4/21. It is common ground between the parties that Kheng and Nam continued thereafter to treat the 1927 Agreement as binding between them.

In February 1950, Kheng and Nam incorporated a company called Lee Brothers (Wee Kee) Pte Ltd (Lee Brothers). Shares in Lee Brothers were held by Kheng and Nam and members of their families. They also transferred all the immovable properties of the Kongsi and STTCK to Lee Brothers. The then shareholders in Lee Brothers were as follows:-

Kheng and his family - 9,350 shares Nam and his family - 10,250 shares Kheng and Nam - 2,400 shares (holding for STTCK)

Kheng and Nam had also incorporated one other company (Hai Chua Sdn Bhd) and formed two other business firms (Chye Hua Seng Wee Kee and Buan Yak Seng). I do not propose to say anything more about that company and the two firms as nothing really turns on them.

From 1909, Kheng spent much of his time in Bangkok. Before then he was the general manager of the Sze Hai Tong Bank Ltd (now known as the Four Seas Communications Bank Ltd) in Singapore. In that year he left for Bangkok to set up a branch of the Bank there. Nam remained in Singapore and took over the position of general manager of the Bank here. He also managed all the joint businesses of the family, including the Kongsi and STTCK.

On 18 July 1962, Kheng died. At the time, the assets of the Kongsi consisted of stocks and shares in banks and insurance company and certain businesses. On 17 September 1962, probate of Kheng's will was granted to his two sons Lee Hiok Kher (Kher) and Lee Hiok Kwee (Kwee). In his will, Kheng directed his executors and trustees to carry on his businesses for a period of up to five years and that his estate was only to be distributed to the beneficiaries five years after his death.

After the death of Kheng, the businesses of the Kongsi, Lee Brothers and STTCK continued as before. They were controlled and managed by Nam. On 15 March 1963, Nam incorporated a company called Lee Hiok Kee Pte Ltd (LHK Pte) whose shares were held entirely by Nam's sons and grandsons. On 30 July 1963 the shares of Nam's descendants in Lee Brothers were transferred to LHK Pte. In or about October 1963 the paid-up capital of LHK Pte was increased from $300/- to $3.05 million. Shortly after the incorporation of LHK Pte (i.e., on 4 April 1963), Nam incorporated a second company called Lee Investments Pte Ltd. The shares in this company were held entirely by Nam's male descendants.

On 23 January 1964 Nam died. Thereafter, the businesses of the Kongsi, Lee Brothers and STTCK were controlled and managed by Nam's two sons, Lee Hiok Tng (Tng) and Lee Hiok Woon (Woon). The probate of Nam's will was, on 30 April 1964, granted to Woon and Tng.

In law, it is clear that on the death of Kheng in July 1962, the partnership in the Kongsi was dissolved. However, the evidence would appear to show that neither Nam, nor, after his death, his personal representatives, seriously attempted to wind up the affairs of the Kongsi and to distribute the assets of the Kongsi to the persons entitled thereto. Nam did not give an account of Kheng's assets in his hands to Kwee and Kher, the executors of Kheng; neither did Nam's personal representatives until well after the institution of this action, Suit No 1401 of 1973. The records also show that Nam's personal representatives were not cooperative towards Kheng's personal representatives who were seeking to ascertain the assets of the Kongsi.

On the evidence, and it is really common ground between the parties that all the moveable properties (including stocks and shares) of the joint businesses of Kheng and Nam in Singapore were registered in the name of Nam. Neither the Kongsi nor STTCK had at any time maintained any separate bank accounts. The moneys of the Kongsi and STTCK were deposited into Nam's personal bank accounts or the accounts of Lee Brothers. Immediately before the death of Kheng, a substantial portion of the assets of the Kongsi consisted of shares in four banks, Overseas-Chinese Banking Corporation (OCBC), United Overseas Bank (UOB), Overseas Union Bank (OUB) and Sze Hai Tong Bank Ltd (now known as Four Seas Communications Bank Ltd) and four insurance companies in Singapore.

Consolidated action

The present hearing before me relate to two suits, No 1401 of 1973 and No 2457 of 1981, which have been consolidated pursuant to an order of court of 16 October 1981. In Suit No 1401 of 1973, the plaintiffs, who are the sons and grandsons of Kheng are suing their half brothers (or uncles) Kwee and Kher as executors of the estate of Kheng for failing to realize and account for the assets of the estate in various companies and partnerships and to distribute the same to the beneficiaries entitled thereto under the will of Kheng and to pay for the estate duties due. The plaintiffs pray for various inquiries, the taking of accounts and declarations.

In Suit No 2457 of 1981, the same plaintiffs sue (i) Woon and Tng as the executors and trustees of the estate of Nam and (ii) Woon, Tng, Kwee and Kher, all in their personal capacities. In the statement of claim, the plaintiffs allege that during the joint life-time of Kheng and Nam they had carried on business together as partners in the Kongsi and in STTCK. Kheng and Nam were shareholders in Lee Brothers, Sze Hai Tong Bank Ltd and other companies and had jointly invested in shares of public companies, all which shares were registered in the name of Nam or his nominees.

In the suit, the plaintiffs further allege that following the death of Kheng, Nam was in breach of his fiduciary duties in the following respects:-

(a) failure to wind up the partnership in the Kongsi and to render an account to the estate of Kheng and to distribute to Kheng's representatives the appropriate share of Kheng in the partnership assets; (b) retaining or converting partnership assets for his own benefit; (c) transferring partnership assets to his descendants and to LHK Pte and Lee Investments Pte Ltd.

As against Woon and Tng, the plaintiffs allege that they had assisted Nam in the commission of those breaches of trust. Further, they had repeated, continued and/or approbated the breaches when they managed the partnership assets after the death of Nam.

As against Kwee and Kher, the plaintiffs allege that as the executors and trustees of the Kheng estate, they have failed to get in the assets belonging to the estate and to wind up those businesses of which Kheng was a partner and had instead knowingly/recklessly allowed Nam, Woon and Tng to deal with partnership assets as aforesaid. The plaintiffs also allege that Kwee and Kher have also failed to obtain from Nam, or after Nam's death from Woon and Tng, an account of all the properties and assets due to the Kheng estate.

At this juncture I ought to state that by the time this consolidated action came before me for hearing commencing on 11 Nov 1991, numerous interlocutory applications had been made to the court and orders granted pursuant thereto. Separate actions had also been commenced by the parties on specific matters. I do not propose to refer to all these applications/actions, except those which I think have a bearing on what I have now to decide.

(i) On 28 November 1975, an order was granted for the sale of certain shares of OCBC (pursuant to summons-in- chambers No 4113/1975) and of the proceeds, 60% was to be paid to the plaintiffs and the balance was to be retained until further orders.

(ii) On 26 March 1975, Kwee and Kher commenced an action in Suit No 1003 of 1975 against Woon and Tng as executors of the estate of Nam claiming, inter alia, for a sum of money, for the dissolution of the Kongsi and for all necessary accounts and inquiries. This action was not proceeded with for the reason given below.

(iii) In 1980 certain interlocutory injunctions obtained by the plaintiffs were varied to enable certain shares of the Kongsi to be distributed to Woon, Tng, Kwee and Kher. This led to six appeals to the Court of Appeal which were heard together. The Court of Appeal reversed the decision of the court below. The judgment in the case was reported in Re Estates of Lee Wee Nam, decd and Lee Wee Kheng, decd < 1982 > 1MLJ 109.

(iv) By various orders (some by consent) made under summons-in-chambers No 918/1978 in this consolidated action, certain shares in three banks (OCBC, OUB, UOB) and four insurance companies belonging to the Kongsi were distributed among the plaintiffs, Kwee, Kher, the estate of Nam and the estate of Kiat after much wrangling as to whether some portion of the shares belonged to the Kongsi.

(v) On 6 January 1981 Woon and Tng (in their personal capacities as well as the executors of the Nam estate) filed Originating Summons No 12 of 1981 raising a whole host of issues relating to STTCK and the partnerships between Kheng and Nam. Some of the issues were subsequently struck out as they duplicated what are raised in Suit No 1403 of 1973 and Suit No 1003 of 1975. Eventually what remained in the Originating Summons for the determination of the court was a question of the construction of the rules of STTCK to determine the true nature and character of STTCK. On 22 August 1984 the High Court (Lai Kew Chai J) ruled that STTCK was not a valid charitable trust; the court held that STTCK was void for uncertainties and for infringing the rule against perpetuities. The court declared that the assets of STTCK were held in trust for the estates of Kheng, Nam and Kiat in equal shares. Following this decision, STTCK's share in all known assets of the Kongsi were distributed to the estates of Kheng, Nam and Kiat.

(vi) On 24 August 1988, Kwee and Kher instituted Suit No 1695 of 1988 against Woon and Tng (in their personal capacities as well as executors of the estate of Nam) and Lee Hiok Kee Pte Ltd to claim for certain stocks and shares rightfully belonging to the Kongsi and in respect of which the estate of Kheng has a share and which were not taken into account in the orders made in summons-in-chambers No 918/1978. These undisclosed shares are the following:- (a) 12,240 OCBC shares transferred by Nam to LHK Pte on 26 August 1963; (b) 125 OUB shares of $100 each transferred by Nam to LHK Pte in August 1963; (c) 27 OUB shares of $100 each transferred by Nam to Tng in August 1963; (d) 125 OUB shares of $100 each acquired by LHK Pte in 1964 on rights declared on the Kongsi's shares; (e) 378,000 UOB shares acquired by LHK Pte in 1973 on rights declared on the Kongsi's shares. This action was discontinued for the reason indicated later.

(vii) Pursuant to an order of 8 November 1991 made in this consolidated action, leave was granted to the fourth to sixth defendants (Kwee, Kher and the estate of Kheng respectively) to bring a counterclaim against the first to third defendants (the estate of Nam; Woon and Tng respectively) in respect of the undisclosed shares and also for an indemnity should Kwee and Kher be held liable for any breach of trust by virtue of their failure to get in and distribute the assets of Kheng. As a term of the leave, the fourth to sixth defendants discontinued suits Nos 1003 of 1975 and 1695 of 1988.

I should also state that in so far as the undisclosed shares are concerned, as early as in 1984, the plaintiffs had settled their entitlement to those assets with the first to third defendants for a sum of one million dollars. Effectively, the counterclaim of Kwee and Kher is to assert their entitlement to an appropriate share of the undisclosed shares through the Kheng estate and which belonged to the Kongsi. However, as between the plaintiffs and the first to third defendants, notwithstanding the one million dollar settlement, there still remains a minor dispute between them, which is, whether that settlement also included the plaintiffs' entitlement to those undisclosed shares through STTCK's share in the Kongsi. It will be recalled that STTCK held 4/21 share in the Kongsi.

A further development in the case is this. When the hearing commenced, it was indicated to the court that the plaintiffs and the fourth to sixth defendants were discussing and were about to reach a certain understanding on the action. The fourth to sixth defendants have always denied any breach of duty. On 15 November 1991, the parties signed an agreement where the fourth to sixth defendants agreed, inter alia, to pay the plaintiffs a sum of $250,000 as a contribution towards their costs in this action, subject to certain undertakings, one of which is that the plaintiffs will abandon all claims against the fourth to sixth defendants for breach of trust. The parties also agreed that whatever moneys or assets are recovered from the first to third defendants shall be "distributed immediately net of any sums retained by the (fourth to sixth defendants) for the payment of estate duty ... or any of the other expenses properly incurred or to be incurred by them in the administration of the estate." Accordingly, the plaintiffs are no longer seeking any relief against the fourth to sixth defendants.

On the submissions before me what I have to decide are three broad questions:-

(i) whether Nam, as the constructive trustees after the death of Kheng, was in breach of trust and whether, after Nam's death, the first to third defendants, as the executors and trustees of the Nam estate and the constructive trustees of the Kheng estate, were similarly in breach of trust vis-a-vis the Kheng estate;

(ii) whether the first to third defendants are liable to account for and restore to the Kongsi in respect of the undisclosed shares, namely, the 12,240 shares in OCBC, the three lots of 125, 27 and 125 shares (of $100 each) in OUB, and the 378,000 shares in UOB.

(iii) whether the one million dollar settlement which the plaintiffs reached with the first to third defendants on the undisclosed shares included their entitlement through STTCK in the Kongsi or was it only limited to their entitlement through Kheng.

Undisclosed shares

I will first deal with the second question, the counterclaim of the fourth to sixth defendants against the first to third defendants relating to the undisclosed shares. During the course of the hearing before me, it was conceded for the first time by the first to third defendants that of the five lots of undisclosed shares, the 378,000 UOB shares taken up by LHK Pte in 1973 and the 125 OUB shares acquired by LHK Pte in 1964 are properties belonging to the Kongsi and must be accounted for. That being the position, no more need be said about these two lots.

I will turn now to examine the other lots which the first to third defendants do not concede as belonging to the Kongsi. First, is the lot of 12,240 OCBC shares. 5AB 1067 (an extract of the share transfer register of OCBC) shows that on 10 September 1963 two lots of OCBC shares, 12,220 and 20, were transferred from Nam to LHK Pte. However, relying on certain income tax returns submitted for the Kongsi for the years 1960-3 (4DB5-10), Mr Stewart, counsel for the first to third defendants, sought to demonstrate that the shares belonged to Nam personally. Those returns show how the dividends received were apportioned as between the Kongsi and Nam personally, i.e., twenty parts to the Kongsi and one part to Nam. Counsel then invited the court to examine 5AB1066 (an extract of the share transfer register of OCBC) and to add up all the shares listed therein up to the end of 1962. This would produce a figure of 257,000. He said that 1/21 part of 257,000 is 12,240. Thus in 1DB51 (a table drawn to reconcile differences between OCBC records and the Kongsi's books) it is shown that as at the end of 1963 the Kongsi owned 244,800 OCBC shares. Therefore, this lot of 12,240 shares belonged to Nam and which Nam was entitled to transfer to LHK Pte.

I would first note that, as observed by Mr Pattern, this is only a theory of counsel deduced from the figures set out in the tax returns. It has never been stated in the pleadings; neither has it been raised in the affidavits of Woon and Tng. In fact the affidavit of Woon and Tng, affirmed on 31 October 1991 in relation to summons-in-chambers No 3904/1983, stated that the 12,240 stocks of OCBC were not taken up by the Kongsi. This clearly suggests that they belong to the Kongsi. Arithmetically, what counsel said is correct. Those tax returns appear to show that from 1960, Nam decided, and we do not have the reasons why, to allocate 1/21 part of the OCBC dividends to himself personally. I do not think it is correct that I should decide this point just on the tax returns. In a sense, as Mr Patten put it, they are self- serving. I think one has to go back to the 1927 Agreement under which the Kongsi was established. The Agreement clearly provided that the brothers would amalgamate their savings and businesses under the Kongsi. There was nothing from 1927 to 1962 to suggest that Kheng and Nam had decided to put aside any part of the Kongsi's assets specially for Nam. Neither is there any evidence which indicates that some investment in shares was for the sole account of Nam. There is similarly no evidence to show how the 1/21 separate part came about; or to show that Kheng was informed during his life time of the same or that copies of the tax returns were extended to Kheng, who practically lived in Bangkok. The assets of the Kongsi were managed entirely by Nam. Evidence could have been given on this. However, no assistance whatsoever was rendered by Nam's executors, Woon and Tng.

I could not imagine that the income tax returns could have been prepared by Nam personally. Some accountant or accounts clerk must have prepared them based on some documents. Where are the documents? Even if the returns were prepared by Nam, where are the supporting documents upon which the returns were based? I note that when Woon and Tng were negotiating with the plaintiffs on the undisclosed shares (though negotiation was on a without admission of liability basis and the lot of 27 OUB shares were not taken into account) it was never claimed by Woon and Tng that those OCBC shares, all of which were registered in Nam's name, belonged to Nam personally. Furthermore, in the schedule listing out the assets of Nam for estate duties purposes (3DB7) it was not claimed that the 12,240 OCBC shares belonged to Nam personally. In fact, in 1AB212, which was a letter dated 9 Nov 1966 from the solicitors of Nam estate to the Commissioner of Estate Duties, it was stated that the 12,240 OCBC shares (and also the 125 OUB shares discussed below) were sold to LHK Pte. But no documents or books have been produced to show such a sale. No proper accounting was made.

In this regard, it is of interest to refer to certain subsequent exchange of correspondence. They show that apparently LHK Pte issued two cheques. But the two cheques did not go into any account of Nam. Nam estate's solicitors stated (2AB270) that Nam had cashed the two cheques. Nam's executors did not know what Nam did with the cash. The solicitors also stated that "our clients (could) only assume that (Nam) utilized the cash to pay off his personal liabilities." If that is the true position, then selling off trust assets and utilizing the proceeds for Nam's own purpose would be a breach of trust.

Having regard to the 1927 Agreement, I find, on a balance of probabilities, that the 12,240 OCBC shares belonged to the Kongsi. Under clause 8 of the Agreement a brother could enter into a venture on his own. But considering clause 8 as a whole it is clear that a brother could only do so after discussing with the other brother and the latter had not agreed to go into it. There is nothing to demonstrate how and when 1/21 part of all OCBC shares had suddenly in 1960 become the personal assets of Nam instead of the Kongsi. In fact in 3DB 36, the balance sheet of the Kongsi as at December 1964, it is shown that the whole of 257,829 OCBC shares belonged to the Kongsi. In circumstances such as the present, the burden is on Nam (now on Woon and Tng) to show that 1/21 part in the OCBC shares in fact belonged to Nam personally. Mr Patten cited to me a case on point: Re Tilley's Will Trust < 1967 > 2 All ER 303. In that case, after reviewing the authorities, Ungoed-Thomas J said at p.306 "If a trustee mixes trust assets with his own the onus is on the trustee to distinguish the separate assets and, to the extent that he fails to do so, they belong to the trust."

I turn next to the two lots of OUB shares (125 and 27) which were in August 1963 transferred to LHK Pte and Tng respectively. Mr Stewart, counsel for Woon and Tng, sought to explain the 125 shares of OUB in a similar fashion as for the 12,240 OCBC shares. He said that 5AB 1060 (an extract of the share transfer register of OUB) shows that as at the end of 1962 a total of 402 shares were registered in the name of Nam. If we take away 27 shares that leaves 375 shares. One hundred and twenty five shares represent 1/3rd of 375 shares. Then relying on the tax returns of the Kongsi for 1960, 1961 and 1962 (4DB5, 4DB6, 4DB8) he said that the dividends deriving from the OUB shares were split in the ratio of 2 to 1 between the Kongsi and Nam personally.

The reasons which I have given above in relation to the 12,240 OCBC shares apply equally here. Further, the following queries come to mind which demand some explanations:-

(i) Why was it that in relation to the OCBC shares the ratio is 20 to 1 and for the OUB shares the ratio is 2 to 1? There may well be a simple answer. But no assistance is given to the court by way of evidence.

(ii) Why was it that in relation to the dividend declared on 29 June 1963 (shown in 4DB10) the dividend was not divided up in the ration of 2 to 1 but in the odd ratio of 1875 to 1140?

(iii) What is the justification for subtracting the 27 shares from the 402 shares in order to arrive at the ratio of 2 to 1? No appropriate corresponding subtraction was made from the dividend amount in order to arrive at the ratio of 2 to 1.

(iv) In the schedule to the estate duty affidavit sworn in respect of the Nam estate, the 125 plus 27 shares of OUB were listed as belonging to Nam (3DB7). Yet in a letter written on 17 April 1982 by the solicitors for the executors of Nam to the Commissioner of Estates Duties it was stated that the OUB shares "were held by (Nam) in trust for Wee Kee Kongsi"; they asked for a correction. In Woon's affidavit filed on 31 October 1991 he said again that "the 152 shares of $100 each in OUB declared in exhibit C as belonging to the estate was a mistake." Now Mr Stewart sought to assert a fact contrary to what was stated in the letter of 1982 and what was affirmed by his client just over a week before this hearing commenced.

It seems to me that in relation to the above, either Woon or Tng or both could have assisted the court. Considering the circumstances and having regard to the age of Nam (the evidence would suggest that at his death he was past 80 years old), I think it most likely that Woon and Tng must have assisted their father in the business for quite a while before his death. However, for reasons of their own, they chose not to testify and thus denied the court an opportunity to clarify its thoughts.

Finally, I ought to state that no theory has been advanced by Mr Stewart to explain the 27 OUB shares given by Nam to Tng. Even he has to concede that the position on the 27 shares is a "little unclear". For all these reasons I hold that the first to third defendants have not shown that the two lots of 125 and 27 OUB shares did not belong to the Kongsi. Therefore, the first to third defendants must account for the same.

Breaches of trust

The first to third defendants rightly concede that Nam, as a partner, owed a fiduciary duty to Kheng and after Kheng's death to Kheng's personal representatives in relation to all the assets and affairs of the Kongsi. They also concede that Nam was under a duty to account to Kheng and after Kheng's death, to his personal representatives in respect of all income, profits and dealings with the assets of the Kongsi. The first to third defendants also admit that Nam, as well as they themselves, knew that Kheng had a beneficial interest in the Kongsi assets.

The first to third defendants further concede, and again I would say rightly so, that on the death of Nam, his personal representatives owed to the personal representatives of Kheng (i.e., Kwee and Kher) the corresponding duties as those owed by Nam immediately before Nam's death: see Court of Appeal judgment in Re Lee Wee Nam, decd < 1982 > 1MLJ 109 at 111.

The law is clear. A person occupying a position of trust must not make a profit which he can acquire only by the use of his fiduciary position, and if he does, he must account for it: see Regal (Hastings) Ltd v Gulliver < 1942 > 1 All ER 378 at 395.

On the death of Kheng in July 1962 it was the duty of Nam to wind up the partnership in the Kongsi and to account to the Kheng estate and distribute the net assets. On the evidence before me, it is clear that no serious efforts were made towards that end. A distribution of the assets did not take place until the orders of court were made in summons-in-chambers No 918/1978. Further, in the light of the admission made by the first to third defendants that the 378,000 UOB shares and the 125 (at $100 each) OUB shares, together with the accumulated rights, dividends and interest are yet to be distributed, there cannot be any doubt that the winding up of the Kongsi's affairs has still not been completed after something like twenty-nine years.

There is also indisputable evidence that dividends due to the Kongsi, which were thus trust moneys, were utilized by Woon and Tng to pay up the estate duties due from the Nam estate to the Commissioner of Estate Duties. There were at least four instances of that. This is shown in 21ABII 63, 68 and 69. This is also borne out in a letter written by a firm of chartered accountants who were appointed by the first to third defendants to prepare certain unaudited accounts of the Kongsi (1DB41). This was what the accountants said:-

"As regards the dividends paid to the Kongsi, these were banked into the bank account of Lee Brothers (Wee Kee) Pte Ltd except for the sum of $324,843.30 (as at 30.6.1979) which were advanced to the estate of Lee Wee Nam decd for payment of estate duty and other expenses. An additional amount of $28,681.50, being dividend paid by OCBC in 1973 was paid direct to the Commissioner of Estate Duties in settlement of the estate duty payable on Lee Wee Nam's estate. However, this amount was not recorded in the Kongsi's accounting records as an advance to the estate."

No consent of the Kheng estate was obtained to utilize the trust money in this manner; neither was the Kheng estate informed.

The Kongsi's books, which are disclosed to the court and covering the period from 1964 to 1981, do not show how many shares in each listed public company the Kongsi owned. The books only show the dividends the Kongsi received. But again based on the accounts disclosed by Woon and Tng in their affidavits affirmed on 10 April 1984 in this consolidated action, there are the following instances of breach of trust committed by Woon and Tng.

(i) In 1973 they allowed LHK Pte to exercise the rights issue of OCBC to take up 121,400 shares which rights belonged to the Kongsi (1DB101). LHK Pte had returned these.

(ii) Nam estate on its own account bought excess shares of 31 shares of $100/- of OUB at $100/- per share of the 1972 rights issue. In 1973, Nam estate again took up the rights issue of 3,100 shares of $1 each at par (one share for one share) and also bought excess shares of 9,900 shares of $1 each at par. Nam's trustees had returned these (1DB104).

(iii) The rights issues declared by UOB as from 1964 in respect of the shares belonging to the Kongsi were taken up by LHK Pte and Lee Brothers. These two companies had agreed to return the shares and all dividends, bonus, and other rights arising therefrom (1DB 108).

In relation to the taking up of the rights issue of 121,400 OCBC shares by LHK Pte in 1973 mentioned in (i) above, my attention was drawn to a rather irregular manner in which Woon and Tng had gone about dealing with the Kongsi assets. I think I ought to refer to it.

On or about 10 September 1973 a resolution was passed by the directors of Lee Brothers to take up the rights issue of 19,728 shares of S$10 each at S$40 per share in OCBC, which shares belonged to the Kongsi and were registered in the name of Nam. The resolution also authorized the company to take up the rights issue of its 21,048 shares in OCBC. The director further authorised Tng, Woon and one other Lee Hiok Siang to negotiate with the Singapore International Merchant Bankers Ltd (SIMBL) for a loan of S$1,650,000 to take up the above two lots of rights issue and to use its existing holding of 42,000 OCBC shares as collateral for the loan. But what in fact happened was that the rights were taken up not by Lee Brothers but by LHK Pte and a loan of $4,000,000 was obtained by LHK Pte from SIMBL to pay for it. Tng and Woon also used the loan to take up another lot of 121,400 rights issue in OCBC. It was only at the board meeting on 28 May 1975 of Lee Brothers that Kwee and Kher were informed that the loan was given by SIMBL to LHK Pte (5AB894). Kwee complained at the meeting that all the loan arrangements "were not done in consultation with the other members of the board."

Following a complaint by Kwee and Kher to the Registrar of Companies, efforts were made to regularize the matter. At a board meeting on 10 September 1975 (5AB959) Lee Brothers was authorized to borrow S$1,600,000 from SIMBL and S$631,450 ordinary stocks in OCBC were to be pledged to SIMBL as security. A loan agreement was accordingly entered into between Lee Brothers and SIMBL on 13 September 1975. LHK Pte entered into a separate loan agreement with SIMBL.

The undisclosed shares would not have been uncovered but for certain investigative work undertaken by the plaintiffs and their advisers. And even after the first to third defendants had reached a settlement with the plaintiffs, they, in league with the plaintiffs, sought to keep these shares away from the fourth to fifth defendants. The correspondence would appear to show that the plaintiffs were angry with the fourth to fifth defendants and did not want them to share the fruits of the plaintiffs' labour. As for the first to third defendants, they have everything to gain for not telling the fourth to fifth defendants about the undisclosed shares. As indicated above, now in court, Woon and Tng have conceded that in 1973 they had allowed LHK Pte to take up rights issued in respect of 378,000 shares in UOB though it was explained (in 5AB1034) that these rights were not taken up because the Kongsi then had insufficient funds. Similarly they now also concede that the 125 OUB rights belonged to the Kongsi. Of course, I have also herein found that the 12,240

OCBC shares and the two further lots of 125 and 27 OUB shares belonged to the Kongsi.

Having regard to the foregoing, I find that both Nam and his personal representatives had committed breaches of trust. Considering the conduct of Woon and Tng, I have serious doubts whether they would be able to examine the books and accounts of the Kongsi with the same kind of objectivity, thoroughness and care as a professional third party would. It is not unreasonable for the plaintiffs and the fourth to sixth defendants to have no faith in Woon and Tng or in any one they nominate. Accordingly, I am of the opinion that it would be just and appropriate for the court to appoint an accountant or accountants to scrutinize the accounts of the Kongsi. Mr Stewart does not dispute that some further accounts must be taken. His main concern is one of scope. He emphasised that it ought to be borne in mind that all the irregularities in the management of the Kongsi assets mentioned above only occurred after the death of Nam. He felt that any taking of accounts should only relate to the period after Nam's death. In my view that would not be correct. I have found that there were breaches of trust committed by Nam. Of course, no fraud or dishonesty is alleged against him. In any case for completeness the inquiries and the accounts must be taken as from the date of Kheng's death. This exercise cannot be avoided if one really wants to clear the accounts once and for all. From the records before me I can see that the accounts of the Kongsi are complex. My regret is that the exercise was not done earlier. The parties have since the conclusion of the hearing jointly submitted to me, at my request, some names of accountants to undertake the task. In passing I would like to mention this. On 2 Nov 1982 one Kei Ah Wah was appointed by the court as the receiver for the Kongsi. Though he was discharged in April 1984 as the receiver by the consent of all the parties, I felt that his interim report set out in his affidavit filed on 12 November 1983 under summons-in-chambers No 2820 of 1982 is pertinent. He stated, inter alia, the following:-

"That as a result of my enquiries and execution of my duties as receiver in this matter, I have managed to arrive at preliminary conclusions that substantial and systematic irregularities and concealments have occurred in the affairs of the Kongsi and in relation to its assets which would require further investigation as well as by the authorities."

Scope of million dollar settlement

I now turn to the third question: whether the one million dollar settlement between the plaintiffs and the first to third defendants in April 1984 also included the plaintiffs' entitlement to the undisclosed shares through STTCK or was the settlement only confined to the Plaintiff's entitlement through Kheng's 9/21 share in the Kongsi. It will be recalled that STTCK held 4/21 share in the Kongsi. The first to third defendants submit that the settlement was a final one and was to encompass the plaintiffs' entitlement to the undisclosed shares from whatever source or on whatever basis. It was a full compromise. They contend that the parties were at all times aware that the plaintiffs could claim a share to the undisclosed shares through STTCK. The questions of the nature of the STTCK fund and who were entitled to it were raised in OS No 12 of 1981 and the parties could not have overlooked that.

This question to a large extent revolves round a letter dated 10 Apr 1984 (11 AB2515A) written by the plaintiffs' solicitors, M/s B Mohan Singh & Co to M/s Ching & Co, the solicitors for the first to third defendants, the relevant part of which reads:-

"We refer to the several meetings held in the past few months regarding a settlement between your clients and the plaintiffs.

We must point out specifically at this juncture that this letter is written on behalf of our clients only. A copy of this letter has been sent to Mr S.B. Shah and he will, we expect, let you know if the 1st Plaintiff agrees to the proposals set out hereunder.

We have explained to our clients at great length and in great detail the issues involved and discussed at the meetings. Our instructions are that unless your clients make an offer acceptable to our clients in consideration of our clients (and the 1st Plaintiff if he is agreeable) withdrawing all their claims against your clients there cannot be an overall settlement. Our clients' views of the proposals put forward on behalf of your clients so far, are that they are inadequate for an over-all settlement.

Our clients appreciate that all the parties in these proceedings are close relatives and it would not be in the interest of the parties if the proceedings were to be prolonged.

Our clients have instructed us that in view of the above matters and with a view to bringing about an early settlement of the proceedings between the parties, at this stage, they are prepared to agree to:-

1. a distribution of the known assets of Wee Kee Kongsi to the respective parties who are entitled thereto save that Lee Hiok Kwee and Lee Hiok Kher's entitlement are to be held by their solicitors until further order of court; and

2. disclaiming their interest in the following shares including all accrued rights, bonus issues and dividends.

a. 125 OUB Ltd shares. b. 12,240 OCBC Ltd stocks which were transferred by Lee Wee Nam to Lee Hiok Kee Pte. Ltd. in 1963.

c. 125 OUB shares acquired by Lee Hiok Kee Pte Ltd on rights declared on Wee Kee Kongsi's shares in 1964;

d. 378,000 UOB shares acquired by Lee Hiok Kee Pte Ltd on rights declared on Wee Kee Kongsi's shares in 1973."

The crucial words in this letter are "their interest". What do they mean? Mr Burke Gaffney informed the court that all the calculations in working out the one million dollars related only to the plaintiffs' entitlement through the 9/21 share of Kheng in the Kongsi and had nothing to do with their possible entitlement through STTCK. He pointed out that in the letter there were express references to STTCK - first, the solicitors of the first to third defendants were required to take steps to have an early hearing for OS No. 12 of 1981; and second, the entitlement of STTCK to that part of the shares of the Kongsi which the parties had agreed should be distributed, would be held by M/s Ching & Co and another solicitor on an undertaking not to part with them until an order was made in OS No. 12 of 1981. Mr Burke Gaffney said that until Lai Kew Chai J declared in OS No. 12 of 1981 that STTCK was not a charitable trust, it was thought that it could be one.

Another point raised by the plaintiffs is this. They say that a binding agreement on the one million dollar settlement was in fact reached on 28 March 1984, well before the letter was written. It was an oral agreement between Mr B Mohan Singh and Mr Ching for the first to third defendants. Mr B Mohan Singh testified that various discussions were held between him and Mr Ching. An agreement was reached on 23 March 1984. On 24 March 1984, he left for Bangkok to seek clients' instructions. After returning from Bangkok, he met Mr Ching at his own office and conveyed the plaintiffs' acceptance of the one million dollar offer. It was agreed that the plaintiffs' entitlement through STTCK would be frozen. It is not disputed that between 28 March 1984 and 10 April 1984, there was no written communication between Mr Mohan Singh and Mr Ching. He also agreed that the meeting between he and Mr Ching on 28 Mar 1984 was on a "without prejudice" basis. I am afraid I cannot accept the assertion of Mr Mohan Singh that there was a binding contract between the parties on 28 Mar 1984 where in consideration of one million dollars, the plaintiffs would isclaim their rights to the undisclosed shares. I think he is quite mistaken. My reasons are these:-

(i) First, the meeting on 28 March 1984 was between solicitors on a "without prejudice basis".

(ii) Second, when asked what were the other terms of the agreement reached on 28 March 1984, Mr Mohan Singh said that he could not recall. All he could recall was the main term, which was, one million dollars for the disclaimer.

(iii) Thirdly, the way in which the letter of 10 Apr 1984 was written (and this is his own letter) clearly points to the fact that the parties did discuss a number of issues and have reached some kind of agreement on them. But there was no binding contract as such. The letter itself was marked "strictly without prejudice". (iv) The phrase "our clients have instructed us that in view of the above matters and with a view to bringing about an early settlement of the proceedings between the parties, at this stage, they are prepared to agree to" in the letter could only have one meaning. There was no contract as yet. Undoubtedly what was set out in the letter was provisionally agreed upon, subject to final confirmation or acceptance. If there was already a separate binding agreement between the parties on the million dollar offer and the disclaimer, I would have expected the letter to say something quite different.

Accordingly I find that there was no oral binding agreement on 28 Mar 1984. The letter of 10 Apr 1984 set out the matters provisionally agreed upon. Acceptance was by conduct.

This brings me to the next point: the parol evidence rule. Mr Stewart submitted that in view of the fact that the agreement was reduced to writing as set out in the letter, no oral evidence is admissible to construe the document except evidence relating to the factual matrix. But there is a more basic question. Does the letter set out all the terms of the agreement. An examination of the letter will disclose that it is a complex letter and a large part of it described the machinery to carry out the proposed settlement. It was not a letter drawn up jointly by both parties. It was written by Mr Mohan Singh based on his own understanding of the discussions held. It was not as if the disclaimer was specifically stated to be in consideration of the one million dollars. The disclaimer was one of two considerations offered by the plaintiffs and in return the first to third defendants were to agree to a number of things, one of which was the payment of one million dollars. Acceptance, as conceded by Mr Stewart was by conduct - when the parties appeared before the High Court on 13 April 1984 and certain orders were obtained. I should further add that the letter also specify that the first to third defendants were to deposit with their solicitors the sum of one million dollars twenty-four hours before the hearing of summons-in-chambers No 918 of 1978 on 13 April 1984. I was given to understand that the money was not deposited by the first to third defendants until well after 13 April 1984. Was there, therefore, a variation of that requirement? In my view, looking at the circumstances as a whole, this is a case where the contract was partly oral, partly written and partly by conduct. Accordingly, this court is entitled to look at all the evidence, including the letter, to determine the true bargain of the parties: see Evans & Son v. Andrea Merzario < 1976 > 2 AII Er 930 per Roskill and Geoffrey Lane LJJ.

Even assuming that the correct view of the matter is that the entire agreement was set out in the letter of 10 Apr 1984, that does not mean that no other evidence may be looked at to construe the letter. This is trite law and Mr Stewart does not dispute that. Nevertheless let me quote what Lord Wilberforce said in Reardon Smith Line v. Hansen-Tangen < 1976 > 1 WLR 989 at 995-6 as what he said is illuminating:-

"No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as 'the surrounding circumstances' but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating .... . .

When one speaks of the intention of the parties to the contract, one is speaking objectively - the parties cannot themselves give direct evidence of what their intention was - and what must be ascertained is what is to be taken as the intention which reasonable people would have had if placed in the situation of the parties. Similarly when one is speaking of aim, or object, or commercial purpose, one is speaking objectively of what reasonable persons would have in mind in the situation of the parties."

What is clear is that at the relevant time the status of STTCK was still an open question. OS No 12 of 1981 was pending. While the parties at that time appeared to be of the same mind and would like the court to declare that the trust for STTCK was void, the question remained one for the court to decide. Could it be within the contemplation of the parties that the one million dollar offer was also to include the plaintiffs' entitlement to the undisclosed shares through STTCK share in the Kongsi when there was at that point in time an even possibility that the court could have held that the trust for STTCK was a valid charitable trust? Was it likely that the first to the third defendants would have agreed to compensate the plaintiffs in respect of a claim which the plaintiffs might not be entitled to make at all, if the court were to hold that the STTCK trust was a charitable trust. Besides at that time it was not certain what would be the share of Kheng estate in STTCK, was it to be half or one-third (if the Kiat estate was to be found to be entitled to it). More importantly, it is conceded by the first to third defendants that the calculations, in arriving at the figure of one million dollars, did not include an element attributable to the plaintiffs' entitlement through STTCK.

Furthermore, as pointed out before, the letter expressly stated that Woon and Tng were to take steps to bring about an early hearing for OS No. 12 of 1981. It also stated that "the entitlement of STTCK (was) to be held by you and by another solicitor on an undertaking not to part until an order (was) made in OS No. 12 of 1981. The scrips (were) to be placed in a safe-deposit box to be opened in the joint names....." Pursuant to this, the order of court of 13 April 1984 provided that the first to third defendants would retain the shares and money due to STTCK for the benefit of those persons beneficially entitled thereto and were not to part with them without the authority of court. All these clearly suggest that the parties intended to put everything relating to STTCK aside.

In the light of all the foregoing, I hold that the parties did not intend to deal with that part of the plaintiffs' entitlement through STTCK; that was to be frozen until OS No. 12 of 1981 was decided. In my view everything relating to STTCK was to be put aside. I cannot see anything in the letter which suggests that the parties intended to treat differently that part of the plaintiffs' possible entitlement to the undisclosed shares through STTCK from the plaintiffs' entitlement to the other assets of the Kongsi through STTCK. I cannot see any reason for the plaintiffs signing off their rights via STTCK without getting any consideration for the same as the calculation for the one million dollars did not contain an element attributable to STTCK. In my judgment, the words "their rights" were intended to refer only to the plaintiffs' interest in the undisclosed shares through the Kheng estate.

Before I leave this third question, let me say this. If I am not wrong to hold that the agreement was partly oral, partly written and partly by conduct then I will be entitled to look at all the evidence to determine the true intention of the parties. On the evidence I find that in their discussions before 10 April 1984, Mr Mohan Singh and Mr Ching did probably, in a general sort of way, refer to the entitlement of the plaintiffs through the STTCK. It was agreed to put that aside. I also find that there was probably no explicit mention by either side that the one million dollar settlement would also include the plaintiffs' entitlement to the undisclosed shares through STTCK and not just plaintiffs' entitlement to those shares through Kheng.

There is one other aspect in the evidence which I would touch on. It is a letter dated 11 April 1985 from M/s B Mohan Singh to M/s Ching & Co (PB37) where it was stated:-

"You will recall that in the computation of the known assets of Wee Kee Kongsi, in consideration of our clients' entitlement to certain OUB and OCBC shares, your clients paid to our clients a sum of $1,000,000.

Our clients are similarly entitled to a sum of money from the assets of STTCK. Please let us know when we can expect to receive the same (followed by computation.)"

Mr Ching, in his evidence in chief, said that he did not reply to this letter as he felt it was not necessary. During cross-examination, after an overnight adjournment, Mr Ching told the court that he did call up Mr Mohan Singh by telephone and informed the latter that he could not understand why that letter was sent as the matter had been settled in 1984. Mr Ching has no record in his file of such a telephone conversation. I think Mr Ching might have been mistaken. On a matter like this I would expect that there would be a formal reply particularly if what was said therein was not correct.

It will be recalled that following the decision in OS No 12 of 1981, the other known assets of the Kongsi attributable to STTCK were In October 1984 distributed to the estates of Kheng, Nam and Kiat. I would imagine that the undisclosed shares were not brought up at that juncture because, as indicated earlier, the plaintiffs and the first to third defendants did not want to disclose them to the fourth and fifth defendants. Thereafter, there must have been some oversight on the part of the plaintiffs and/or their solicitors before it was brought up in April 1985. In my view, the matters referred to in the two immediate preceding paragraphs further reinforce the contention of the plaintiffs.

Orders of this Court

To assist the court in the formulation of the orders to be made herein both Messrs Burke Gaffney and Patten have submitted to me drafts of the same. Comments were also made thereon by Mr Stewart. In the light of my determinations on the three main questions discussed above, I now make the following orders:-

1. A declaration that the partnership subsisting between Lee Wee Kheng, Lee Wee Nam and Sze Teck Tng Chye Kee and known as Wee Kee Kongsi was dissolved on the death of Lee Wee Kheng on 18 July 1962. 2. An order that the said partnership may be wound up by this Court. 3. A declaration that all the shares in the following banks and insurance companies, registered in the name of Lee Wee Nam, as on 18 July 1962, were beneficially owned by the Partners in the Wee Kee Kongsi in the proportions of 9/21 to Lee Wee Kheng, 8/21 to Lee Wee Nam, and 4/21 to the trust of Sze Teck Tng Chye Kee. a. Overseas Union Bank Ltd; b. United Overseas Bank Ltd; c. Overseas-Chinese Banking Corporation Limited;

d. Overseas Assurance Corporation Ltd;

e. Public Insurance Co. Ltd;

f. Public Life Assurance Co Ltd;

g. Nanyang Insurance Company Ltd;

h. Sze Hai Tong Bank Ltd (now known as Four Seas

Communications Bank Ltd);

4. A declaration that Lee Wee Nam at no time had any separate beneficial interest in any of the shares listed in paragraph 3 other than that mentioned in that paragraph. 5. A declaration that the first to third defendants are liable to account for and restore to the Kongsi the following assets namely:

a. 12,240 shares in the Overseas-Chinese Banking Corporation Limited transferred by Lee Wee Nam to Lee Hiok Kee (Pte) Limited on or about 26 August 1963;

b. 125 shares of $100 each in Overseas Union Bank Ltd transferred by Lee Wee Nam to Lee Hiok Kee (Pte) Ltd on or about 8th August 1963;

c. 27 shares of $100 each in Overseas Union Bank Ltd transferred by Lee Wee Nam to the third defendant on or about 8th August 1963;

d. 125 shares of $100 each in Overseas Union Bank Ltd acquired by Lee Hiok Kee (Pte) Ltd on rights declared on the shares belonging to Wee Kee Kongsi in 1964;

e. 378,000 shares in United Overseas Bank Ltd acquired by Lee Hiok Kee (Pte) Ltd on rights declared on the shares belonging to Wee Kee Kongsi in or about May 1973.

6. An account of all bonus and rights issues which have been declared in respect of the shares specified in paragraph 5 and all moneys expended to take up the shares. 7. An account of all dividends received in respect of the abovementioned shares (including any bonus and rights issues) specified in paragraph 5 above from the dates of transfer and acquisition to date. 8. A declaration that the first to third defendants are personally liable to make good and restore to the Wee Kee Kongsi: a. the bonus and rights issues specified in paragraph 6;

b. the net dividends specified in paragraph 7 together with compound interest thereon at such rate or rates as may be determined by the court at the taking of accounts.

9. An order that upon the taking of such accounts the first to third defendants do transfer to the fourth to sixth defendants: a. such of the shares described in paragraphs 5 and 6 as represent the 9/21st entitlement of the estate of Lee Wee Kheng to the assets of Wee Kee Kongsi and the 1/3rd share of the estate in the entitlement of Sze Teck Tng Chye Kee to the said assets; and b. the entitlement of the estate of Lee Wee Kheng to the dividends and interest specified in paragraph 8(b) in the proportions described in paragraph 9(a).

10 A declaration that Lee Wee Nam, as constructive trustee for the estate of Lee Wee Kheng of the said listed shares, was in breach of trust, after the death of Lee Wee Kheng, in that he: a. Failed to take any or any sufficient steps to wind up the Wee Kee Kongsi; to get in its assets; to render proper accounts to the estate of Lee Wee Kheng; to give any or any sufficient information to the trustees of the estate of Lee Wee Kheng concerning the assets of the Wee Kee Kongsi; and to distribute any of the said assets to the trustees of the estate of Lee Wee Kheng or to any person beneficially entitled to any interest in the said estate.

b. Transferred 125 OUB shares and 12,240 OCBC shares which were held in his name for the benefit of the partners in the Wee Kee Kongsi to Lee Hiok Kee Pte Ltd in 1963.

c. Transferred 27 OUB shares which were held in his name for the benefit of the partners in the Wee Kee Kongsi to the third defendant in 1963

11. A declaration that the first to third defendants, as constructive trustees for the estate of Lee Wee Kheng of the said listed shares, were in breach of trust, after the death of Lee Wee Nam, in that they: a. failed to take any or any sufficient steps to wind up the Wee Kee Kongsi; to get in its assets; to render proper accounts to the estate of Lee Wee Kheng; to give any or any sufficient information to the trustees of the estate of Lee Wee Kheng concerning the assets of the Wee Kee Kongsi; and to distribute any of the said assets to the trustees of the estate of Lee Wee Kheng or to any person beneficially entitled to an interest in the said estate;

b. caused or permitted Lee Hiok Kee Pte Ltd to acquired 125 OUB shares by way of rights declared on shares belonging to the estates of the former partners of the Wee Kee Kongsi in 1964, and to acquire 378,000 UOB shares on rights declared on shares belonging to the estates of the said former partners in 1973;

c. misappropriated the following sums by causing OCBC to pay dividends, rightfully the property of the estates of the said former partners, direct to the Commissioner of Estate Duties, on the respective date shown:

21 September 1968 $89,569.80

28 April 1971 $58,752.00

4 September 1973 $100,368.00

18 March 1974 $28,681.50

and failed to pay to the estate of Lee Wee Kheng its appropriate share of such dividends. 12 That an account and inquiry be undertaken by Messrs Wong Tui San and Ong Yew Huat of the firm of M/s Ernst and Young as to:- a. the capital assets held by Lee Wee Nam as trustee for the estate of Lee Wee Kheng, for himself, and for the STTCK, as on 19 July 1962;

b. all movements of any part of the said capital assets from the said date to 23 January 1964 inclusive, to include all accretions and all transfers (including all accretions receivable but not received on behalf of the former Wee Kee Kongsi); and as to what became of them;

c. all dividends and other income receivable from 19 July 1962 to the date hereof in respect of any of the above shares belonging to the former Wee Kee Kongsi, and as to what ultimately have become of them;

d. all expenditure from or debited to the income or capital assets of the Wee Kee Kongsi from 19 July 1962 to the date hereof; e. the breaches of trust set out in paragraphs 9 and 10 and the consequential loss to the trust fund. Such account to include a statement of all assets beneficially belonging to Lee Wee Nam, derived from the former partners' assets as on 24 January 1964 as well as on the date of this Order.

13. An account and a report of the inquiry shall be submitted and delivered by Messrs Wong Tui San and Ong Yew Huat to the court within six months of this judgment. 14. Liberty to the plaintiffs and to the fourth and fifth defendants to apply for such further orders as may be necessary. 15. Costs of the parties in these proceedings be reserved. However, the costs to be incurred by the appointment of the accountants to take accounts and to conduct inquiries shall be paid in the first instance out of the trust fund.

I should at this point say that while Mr Stewart did not seriously object to the form of the wording or the nature of the orders which I have been asked by Messrs Burke Gaffney and Pattern to make, he did make two general reservations. First, they are contingent on my determinations on the three main questions dealt with in this judgment. Second, he felt that the order in paragraphs 10(a) and 11(a) are unnecessary and not useful and would lead to subsequent dispute. However, I think that the orders in paragraphs 10(a) and 11(a) have to be made in view of my determinations above.

As requested by the parties I have reserved the question of the costs of the parties. They would like to address me on it after I have given the orders.