Amber Compounding Pharmacy Pte Ltd and another v Lim Suk Ling Priscilla and others

• Jurisdiction: Singapore
• Judge: Audrey Lim J
• Judgment Date: 19 November 2019
• Neutral Citation: [2019] SGHC 269
• Court: High Court (Singapore)
• Hearing Date: 30 October 2019,08 July 2019,24 June 2019,08 April 2019
• Docket Number: Suit No 164 of 2018 (Summons No 484 of 2019)
• Plaintiff Counsel: Tan Tee Jim SC, Christopher James De Souza, Tan Sih Im (Chen Shiyin), Lee Junting, Basil, Chew Zhi Xuan (Lee & Lee)
• Defendant Counsel: Pereira George Barnabas and Sarah Yeo Qi Wei (Pereira & Tan LLC)
• Subject Matter: Civil Procedure,Discovery of documents,Whether release from Riddick principle permissible for purposes of making reports to authorities for criminal investigations
• Published date: 26 November 2019

Audrey Lim J:

In Summons No 484 of 2019 (“SUM 484”), the Plaintiffs in Suit 164 of 2018 (“the Suit”) sought to use 32 documents (“the Documents”) seized from the first defendant (“D1”) and second defendant (“D2”) (collectively “the Defendants”) for the purpose of making reports to law enforcement authorities in Singapore. The main issue was in what circumstances a party may be allowed to disclose documents, obtained under a search order, to the authorities for the purposes of reporting and investigating the possible commission of an offence (herein referred to as “criminal investigation purposes”). A further issue was in what circumstances the court may grant retrospective leave to disclose, which was relevant because the Plaintiffs had disclosed some documents before filing SUM 484.

Background

The first plaintiff (“P1”) specialises in the compounding of medical and pharmaceutical products. The second plaintiff (“P2”) is a related company of P1 and provides P1 with essential support services. D1 is an ex-employee of P1. D1 incorporated D2 and is its director. The Plaintiffs commenced the Suit against the Defendants and other parties for breach of contract, inducing breach of contract, breach of confidence, conspiracy to injure, and copyright infringement.

On 13 April 2018, the Plaintiffs obtained search orders against the Defendants.¹ They executed the orders on 17 April 2018 and seized numerous documents. It should be noted that paragraph 6 of Schedule 3 to the search orders required the Plaintiffs:

Not, without the leave of the Court, to inform anyone else of this Order or the carrying out of this Order or to use any information or documents obtained as a result of the carrying out of this Order except for the purposes of these proceedings or to inform anyone else of these proceedings until the trial or further order.

On 10 May 2018, the Defendants filed Summons No 2169 of 2018 to set aside the search orders. I declined to set aside the search orders and instead directed parties to sort out which documents belonged to the Plaintiffs and which belonged to the Defendants (“the Listing Exercise”).

In conducting the Listing Exercise, the Plaintiffs opined that certain documents revealed the commission of offences by the Defendants under the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”), Penal Code (Cap 224, 2008 Rev Ed), Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”), and Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA”). They proceeded to disclose some of the Documents or excerpts of them to the authorities. When the Plaintiffs’ current lawyers (Lee & Lee) took over the conduct of the matter, they filed SUM 484 seeking leave to disclose the Documents. The Plaintiffs initially sought disclosure of 208 documents but pared this down to the 32 that constitute the Documents.²

The alleged offences

The Plaintiffs alleged that offences were committed under the following provisions. First, s 22(1)(d) of the EFMA provides that any person who:

… in connection with any application for or to renew a work pass or for any other purpose under this Act, makes any statement or furnishes any information to the Controller or an authorised officer or employment inspector which he knows, or ought reasonably to know, is false in any material particular or is misleading by reason of the omission of any material particular … shall be guilty of an offence …

The Plaintiffs alleged that D2 made a false declaration (signed by D1) to support an application for an S-Pass for a foreign employee by affirming that “[t]he employer has not made any voluntary CPF contributions for the purposes of inflating his foreign employee entitlement”. This circumvented the requirement that an employer must employ at least five local employees to obtain an S Pass-for a foreign employee.³ The Plaintiffs referred to various WhatsApp conversations that purportedly showed D1 and the fourth defendant (“D4”) arranging to employ a foreign employee (Marc, an ex-employee of P1) under an S-Pass by falsely claiming that four people were D2’s employees when they were not.⁴ The Plaintiffs relied on the mention of only job positions and salary without any employment details, references to CPF contributions being made “in order to keep Marc in the company”, exhortations not to let anyone know, and expressions of caution that the arrangements were risky.

Second, under s 5 of the EFMA, it is an offence to employ a foreign employee unless he has a valid work pass. The Plaintiffs alleged that D1 hired a foreign employee, Lydia, without a valid work permit.⁵ They relied on an ICA status enquiry confirming that Lydia was on a short-term visit pass during the relevant period of her stay in Singapore; a message stating “no need to apply for work permit [be]cause need pay high levy”; and various messages and photographs or videos showing that Lydia did indeed work for D1.

Third, s 425 of the Penal Code, an offence for mischief, provides:

Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or any person, causes the destruction of any property, or any such change in any property, or in the situation thereof, as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.

The Plaintiffs alleged that “it is likely” that “[D1] and/or Marc” were responsible for two incidents when staple bullets were found in P1’s products.⁶ They relied on WhatsApp conversations between D1 and the fifth defendant (“D5”) discussing these incidents, and between D1 and Marc, where D1 referred to a “staple saga” or “staple bullet thingy” without needing to clarify what this meant.

Fourth, s 6(b) of the PCA provides:

If … any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; … he shall be guilty of an offence ...

The Plaintiffs alleged that D1 instructed Marc and/or made arrangements with him, while Marc was still employed by P1, to siphon P1’s business to the Defendants. They relied on discussions between Marc and D1 regarding which clients to siphon and how the siphoning was to be done, and in which references were made to “commission”, “fair share” or “reimburse[ment]” of Marc.⁷

Fifth, s 3(1) of the CMA provides that:

… any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence ...

The Plaintiffs alleged that D1 inserted her personal thumb-drive into a computer belonging to the Plaintiffs without authorisation and downloaded many documents, some of which were later seized under the search orders. The Documents set out 20 extracts of hardcopy pharmaceutical formulas, formulations and order sheets found in D1’s possession. Some of these still bore the name “Amber”. They also alleged that D1 took and retained documents from other companies in the pharmaceutical industry, especially Allergan (which D1 also worked for previously).⁸

The Plaintiffs submitted that leave should be granted for them to disclose the Documents that, allegedly, evidenced the commission of offences under the EFMA, Penal Code, PCA, and CMA. The offences were serious, disclosure was being sought for a proper purpose, and no relevant prejudice would be suffered by the Defendants. The Defendants submitted that the Plaintiffs should not be allowed to preserve any of the documents, including the Documents, as the Listing Exercise had been completed and the purpose of the search orders had been fulfilled.⁹

The Riddick principle

Where a party to litigation has been ordered to give discovery, the discovering party may not use the discovered document (or information obtained therefrom) for any purpose other than pursuing the action in which the discovery is obtained (“the Riddick principle”, established in Riddick v Thames Board Mills Ltd [1977] 1 QB 881 (“Riddick”)). The Riddick principle seeks to strike a balance between the public interest in full and complete disclosure in the interest of justice, and the interest in protecting the privacy and confidentiality of the party ordered to give discovery (given that discovery on compulsion is an intrusion of privacy): Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555 (“Beckkett”) at [14]. The Riddick principle operates by way of an implied undertaking that extends not only to the documents themselves but also to information derived therefrom (Crest Homes Plc v Marks and Others [1987] 1 AC 829 (“Crest Homes”) at 854), though there might sometimes be express undertakings to similar effect.

The undertaking may be released or modified by the court where cogent and persuasive reasons have been furnished for the request, and the release would not give rise to any injustice or prejudice to the party who had given discovery (“the Beckkett conditions”): Beckkett at [19]; BNX v BOE and another appeal [2018] 2 SLR 215 at [65]. There must be special or exceptional circumstances to release a party from its implied undertaking, and this would depend on the facts of the case (see Beckkett at [18]–[19]; Reebok International Ltd v Royal Corp and another action [1991] 2 SLR(R) 688 (“Reebok International”) at [18]). The Riddick principle applies to discovery in general and documents discovered under a search order. In the latter, although the public interest in encouraging full and frank disclosure is not as dominant as in general discovery proceedings (and is indeed largely absent in reality), this difference is not in itself a strong factor on which the court will release or...