Absolute Kinetics Consultancy Pte Ltd v Seah Yong Wah (Singapore Telecommunications Ltd, non-party)

• Jurisdiction: Singapore
• Judge: Jonathan Ng Pang Ern AR
• Judgment Date: 14 January 2019
• Neutral Citation: [2019] SGHCR 2
• Court: High Court (Singapore)
• Docket Number: Suit No 1149 of 2017 (Summons No 3742 of 2018)
• Year: 2019
• Published date: 22 January 2019
• Hearing Date: 25 September 2018,30 October 2018,14 December 2018
• Plaintiff Counsel: Natasha Cheng Yi Hui and Lim Charmaine Jillian Phipps (Eldan Law LLP)
• Defendant Counsel: Jeeva Arul Joethy (Regent Law LLC),Brinden Anandakumar (Fullerton Law Chambers LLC)
• Subject Matter: Civil Procedure,Discovery of documents,Inherent powers
• Citation: [2019] SGHCR 2

Jonathan Ng Pang Ern AR:

Summons No 3742 of 2018 (“SUM 3742”) in Suit No 1149 of 2017 (“S 1149”) was the plaintiff’s application for non-party discovery. As originally framed, it was an application pursuant to O 24 r 6(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). However, the order which was eventually sought by the plaintiff took a somewhat different form. This gave rise to the question as to whether SUM 3742 could be founded on O 24 r 6(2) of the ROC, or if some other basis for SUM 3742 had to be resorted to. In addition, SUM 3742 also implicated issues relating to the non-party’s supposed statutory duties of confidentiality, and the need for safeguards in an order for non-party discovery.

SUM 3742 came before me over three hearings. The first hearing on 25 September 2018 (the “First Hearing”) was adjourned as the summons had not been served on the defendant (as required by O 24 r 6(2) of the ROC). Thereafter, I heard parties on their substantive arguments on 30 October 2018 (the “Second Hearing”) and 14 December 2018 (the “Third Hearing”) and granted the application. These are the grounds of my decision.

Background The claim in S 1149

The plaintiff, Absolute Kinetics Consultancy Pte Ltd, is a company which deals in the sale of Singtel Easy Mobile Top Up Credits (“Credits”).¹ The defendant, Seah Yong Wah, was the plaintiff’s former employee.²

S 1149 was commenced by the plaintiff on 7 December 2017. The plaintiff’s claim against the defendant involves three business entities: (a) a company known as Afronco Pte Ltd (“Afronco”); (b) a company known as Nirja Mini Mart Pte Ltd (“Nirja”); and (c) a sole proprietorship known as M/s Rene Rene Trading (collectively, the “Three Entities”).³ The plaintiff alleges that the defendant’s modus operandi in respect of each of the Three Entities was similar. This can be summarised as follows: The defendant purported to submit various forms on behalf of the Three Entities.⁴ These forms were purportedly signed by individuals from each of the Three Entities,⁵ and were applications for the Three Entities to act as the plaintiff’s retailer of Credits and for the purchase of Credits to be delivered to mobile telephone numbers which were ostensibly registered to the Three Entities.⁶ In the case of Nirja, the defendant also submitted a form to request that the name of Nirja as retailer be changed to that of “NJ Minimart” (“NJM”). This form was signed by an unknown person purportedly on behalf of both Nirja and NJM.⁷ In the rest of these grounds of decision, no distinction will be drawn between Nirja and NJM. In the case of Afronco and Nirja, the defendant also submitted forms to request that Credits be delivered to other mobile telephone numbers which were ostensibly registered to Afronco and Nirja, instead of to some of the mobile telephone numbers referred to in [4(a)] above. These forms were signed by unknown persons purportedly on behalf of Afronco and Nirja respectively.⁸

The plaintiff claims that the various signatures were forged by the defendant or on the instructions of the defendant to fraudulently get the plaintiff to appoint the Three Entities as its retailer of Credits and to sell and deliver Credits to the Three Entities.⁹ Pursuant to the various forms and subsequent orders placed by the defendant (purportedly on behalf of the Three Entities), the plaintiff sold and delivered Credits to various mobile telephone numbers.¹⁰ As it turned out, however, these mobile telephone numbers were not registered to the Three Entities, and the Three Entities therefore did not obtain the benefit of the Credits.¹¹

The plaintiff’s case is that the various mobile telephone numbers were registered to the defendant or to a person or entity controlled by the defendant, and subsequently sold for a profit.¹² The plaintiff’s claim in S 1149 arises out of this alleged fraud, and is for Credits, totalling $870,594.94, that it had delivered to the various mobile telephone numbers, and which remain unpaid.¹³

The application in SUM 3742

SUM 3742 was taken out on 15 August 2018 against the non-party, Singapore Telecommunications Limited, a leading telecommunications service provider in Singapore.¹⁴ As already noted at [1] above, SUM 3742 was, as originally framed, an application pursuant to O 24 r 6(2) of the ROC. Indeed, this much was expressly stated on the face of SUM 3742 itself. The main prayer, prayer 1, read as follows:

Singtel Telecommunications Limited, by its secretary or other officer duly authorised for the purpose or as the case may be, do within 7 days from the Order to be made herein (or such other period of time as this Honourable Court deems fit) file and serve on the Plaintiff an affidavit stating whether any of the documents set out in “Schedule 1” hereto are or at any time have been in their possession, custody or power, when they parted with them and what has become of them, subject to the Plaintiff’s and the Defendant’s undertaking that, except with the leave of Court, any documents disclosed and produced pursuant to the affidavit shall be used only for the purposes of these proceedings …

In turn, Schedule 1 of SUM 3742 read as follows: a. All communications, application forms, minutes, memoranda or documents showing or revealing the registered names and Singapore NRIC numbers and or other forms of identification numbers, including but not limited to, the business registration numbers, if the registered owner is a business entity, of the registered owners of the following mobile telephone numbers: i. [Phone number 1 redacted] ii. [Phone number 2 redacted] iii. [Phone number 3 redacted] iv. [Phone number 4 redacted] v. [Phone number 5 redacted] vi. [Phone number 6 redacted] vii. [Phone number 7 redacted] viii. [Phone number 8 redacted]

In its affidavit, the non-party took issue with various matters. Among other things, the non-party claimed that prayer 1 of SUM 3742 was over-inclusive, and suggested that it would have been sufficient for the plaintiff’s purposes if the plaintiff had requested an order that the non-party provide, by way of an affidavit, discovery of one document, or as many documents as is necessary, setting out in respect of each of the eight mobile telephone numbers in Schedule 1: (a) the name of the registered subscriber; and (b) the NRIC number or other form of identification number of the said registered subscriber (if any).¹⁵ The non-party also pointed out that Schedule 1 did not contain any specific date or period.

Taking these objections into account, the plaintiff was subsequently willing to accept a more limited order along the lines of the non-party’s suggestion. The order which was eventually sought by the plaintiff was set out in its written submissions. After correcting a typographical error in one of the dates for S/No. 6, this was as follows:¹⁶

Singtel shall provide, by way of an affidavit, discovery of one document, or as many documents as is necessary, setting out the name of the registered subscriber and the NRIC number or other form of identification number of the said subscriber (if any), in respect of each of the eight mobile telephone numbers (the “8 Numbers”) within the specified Relevant Period of Dates set out in Schedule 1 below:

Schedule 1

S/No.	8 Numbers	Relevant Period of Dates
1.	[Phone number 1 redacted]	17/12/2014 – 27/12/2015
2.	[Phone number 2 redacted]	17/12/2014 – 18/02/2017
3.	[Phone number 3 redacted]	15/01/2016 – 25/02/2017
4.	[Phone number 4 redacted]	04/10/2011
5.	[Phone number 5 redacted]	26/11/2014 – 17/04/2017
6.	[Phone number 6 redacted]	03/06/2017 – 22/07/2017
7.	[Phone number 7 redacted]	03/06/2015
8.	[Phone number 8 redacted]	22/12/2015 – 24/07/2017

Parties’ submissions

In its written submissions, the plaintiff submitted that the requested documents existed in the non-party’s possession.¹⁷ Further, the plaintiff claimed that the requested documents were clearly relevant and necessary as the plaintiff was looking to identify or confirm that the defendant and/or his related entities were the registered owner(s) of the eight mobile telephone numbers and the recipient of the plaintiff’s supply of Credits.¹⁸ In the alternative, if the defendant and/or his related entities were not found to be the registered owner(s) of the eight mobile telephone numbers, the plaintiff would then have the requisite information and pursue the action in S 1149 against the correctly-identified party.¹⁹

In its further written submissions, the plaintiff added that it was relevant and necessary to determine the registered owner of the eight mobile telephone numbers so that the involvement of other parties (if any) could be revealed or linked to the defendant’s conduct. Where necessary, the plaintiff would also be able to consider if any other party (if any) ought to be included as a defendant or called as a witness at trial.²⁰

On its part, the non-party submitted, in its written submissions, that the plaintiff had not shown the relevance or necessity of the information it was seeking in SUM 3742 for the following reasons: First, the plaintiff did not appear to have undertaken a full consideration of the relevance of the information sought by reference to the pleaded issues in S 1149.²¹ Second, the plaintiff’s supporting affidavit in SUM 3742 attested to the defendant’s admission of personal liability for all the unpaid Credits purportedly sold to the Three Entities. This being the plaintiff’s position, it was not apparent why the information which was sought would be relevant or necessary. In addition, the defendant, in his first affidavit filed in SUM 3742, had admitted that he had used some of the eight mobile telephone numbers to purchase Credits.²² Third, the plaintiff had not...