Anb v Anc
| Jurisdiction | Singapore |
| Judgment Date | 10 September 2014 |
| Date | 10 September 2014 |
| Docket Number | Suit No 427 of 2013 (Summonses Nos 2511 and 5757 of 2013 and Registrar's Appeal No 75 of 2014) |
| Court | High Court (Singapore) |
[2014] SGHC 172
Quentin Loh J
Suit No 427 of 2013 (Summonses Nos 2511 and 5757 of 2013 and Registrar's Appeal No 75 of 2014)
High Court
Civil Procedure—Affidavits—Husband's affidavit containing transcript of phone conversation between husband's sister and private investigator hired by wife—Husband's affidavit containing statements by former client of law firm representing wife—Whether portions of affidavit to be struck out
Civil Procedure—Injunctions—Inter partes application to set aside ex parte injunction—Wife obtaining information by accessing husband's computer—Whether ex parte injunction prohibiting wife from using or destroying information to be set aside
Evidence—Admissibility of evidence—Wife obtaining information by surreptitiously accessing husband's computer—Whether court could exclude evidence—Whether information to be excluded
Evidence—Witnesses—Husband applying to cross-examine private investigator hired by wife—Whether leave to cross-examine to be granted
The substantive causes of action in this case were the tort of conversion, trespass, and breach of confidence. These proceedings, however, dealt with two applications and one appeal against the decision of an assistant registrar. The proceedings centred on the admissibility of evidence.
The plaintiff was the husband, and the first defendant the wife. They were undergoing a divorce, and were in the midst of proceedings before the Family Court. The second defendant was the law firm representing the wife. The husband alleged the wife had left the matrimonial home but the wife alleged the husband had evicted her. While the husband was in Hong Kong with the children, the wife returned to the matrimonial home to find it padlocked. With the help of a locksmith, she gained entry to retrieve some of her belongings. When in the home, she noticed the husband's laptop on the dining table. She alleged it was ‘on’ and in sleep mode. The husband denied this. She accessed the laptop and saw, inter alia, a file which allegedly showed how the husband had framed her over an incident. The wife then removed the laptop from the home and with the assistance of a private investigator, Dennis Lee, accessed and copied the contents.
The wife subsequently filed an affidavit in the Family Court exhibiting SMS and Whats App Messenger messages documenting exchanges between the husband and various other parties, such as his sister, his brother-in-law and a fellow doctor. The wife alleged that these showed that the husband had manufactured evidence of incidents relating to their relationship and the children. The documents exhibited in the affidavit included communications between the husband and his solicitor.
The husband was curious as to how the wife obtained those documents. In the meantime, the husband's sister heard that Dennis Lee was put forward as a person who could gain access to the contents of computers or i Phones. Accordingly, she telephoned Dennis Lee, pretending to be a prospective client. She recorded and then transcribed the conversation and signed a statutory declaration. The husband also obtained statements from a former client of the second defendant. The former client stated that the second defendant had informed her of an avenue to obtain information from her husband's mobile phone in the midst of divorce proceedings. The husband admitted both of these pieces of evidence in his affidavit dated 22 August 2013. The second defendant controverted these allegations.
On 10 May 2013, the husband applied to the High Court for an interim injunction to, amongst other things, prohibit the defendants from using the information illegally or improperly accessed from the husband's computer in the ongoing proceedings relating to the husband. The ex parte interim injunction was granted.
The defendants then applied to the High Court to set aside the interim injunction, through Summons No 2511 of 2013. This was the first application in these proceedings. The second, Summons No 5757 of 2013, was the husband's application to cross-examine Dennis Lee and inspect his computer. The husband said this was necessary because each time Dennis Lee was caught out by the husband's computer expert's affidavits in reply, Dennis Lee would change his version of the facts in subsequent affidavits. The third, Registrar's Appeal No 75 of 2014, was the defendant's appeal against the assistant registrar's refusal to strike out the portions of the husband's affidavit dated 22 August 2013 referred to above.
Held, granting the application in Summons No 2511 of 2013 in part, and dismissing both the application in Summons No 5757 of 2013 and the appeal in Registrar's Appeal in No 75 of 2014:
(1) Even if the wife obtained the evidence that she did improperly or through illegal means, there was no rule in the law of evidence under the Evidence Act (Cap 97, 1997 Rev Ed) that ipso facto required the exclusion of such prima facie relevant evidence: at [50] and [52] .
(2) The court had the discretion to exclude evidence to prevent injustice under its inherent jurisdiction. However, resort to this inherent jurisdiction was to be made only sparingly and had to have had, as an essential backdrop, the relevant statutory regimes like the Evidence Act and established legal principles through which a door was being sought: at [50] .
(3) The exclusionary discretion ought to be exercised differently in civil, as opposed to criminal, proceedings. This was because when applying the probative value/prejudicial effect balancing exercise in civil proceedings, the prejudicial effect assumed a far lighter weight and role when put in the balance against the probative value component. In criminal trials, however, the presumption of innocence was paramount, and the court should be wary of evidence that might taint the outcome of proceedings: at [51] .
(4) The requirements for an interlocutory prohibitory injunction were two-fold. First, there had to be a serious question to be tried. Secondly, the court had to consider whether the balance of convenience lay in favour of granting or refusing the interlocutory relief sought: at [54] .
(5) The ex parte injunction was set aside, save as to the order prohibiting the defendants from destroying or disposing of any of the information, as there was no serious question to be tried. When the court asked if there was a serious question to be tried, its pursuit was not simply oriented around the viability of each and every one of the plaintiff's pleadings. Rather, the court should be ascertaining if, based on the material before it, the plaintiff had any prospect of succeeding in his claim for a permanent injunction at trial: at [24] and [58] .
(6) Regarding the claim in breach of confidence, there was no serious question as there was no quality of confidence about the information. Further, the circumstances in which the defendants obtained the information did not import an obligation of confidence: at [65] to [67] .
(7) Regarding the claims in conversion and trespass, it was unlikely that either, even if successful at the conclusion of the suit, would result in a permanent injunction prohibiting the defendants from using the information: at [71] .
(8) Even if there was a serious question to be tried, the injunction should be set aside as the balance of convenience lay in favour of the defendants. This was especially so in the light of the serious allegations against the husband, proof of which was contained in the information. If the High Court were to allow the injunction to stand, it would be tantamount to interfering with another court's fact-finding process: at [52] and [72] .
(9) The application to cross-examine Dennis Lee was dismissed. His further evidence had been procured by a statutory declaration. This, coupled with the referral of the matter to the Attorney-General, rendered the cross-examination unnecessary: at [23] and [74] .
(10) The registrar's appeal was dismissed because any privilege that might have once been attached to the parts of the husband's affidavit sought to be struck out had either been waived or overridden by more important considerations. These considerations included the need to disclose either a common view between solicitor and client to commit illegal acts or fraud or crime that might have already been committed: at [77] .
American Cyanamid Co v Ethicon Ltd [1975] AC 396 (folld)
Coco v AN Clark (Engineers) Ltd [1969] RPC 41; [1968] FSR 415 (refd)
Gartside v Outram (1857) 26 LJ Ch 113 (refd)
Gelatissimo Ventures (S) Pte Ltd v Singapore Flyer Pte Ltd [2010] 1 SLR 833 (refd)
Imerman v Tchenguiz [2011] Fam 116 (refd)
Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239; [2008] 2 SLR 239 (refd)
Lee Chez Kee v PP [2008] 3 SLR (R) 447; [2008] 3 SLR 447 (refd)
Maldives Airports Co Ltd v GMR Malé International Airport Pte Ltd [2013] 2 SLR 449 (folld)
Muhammad bin Kadar v PP [2011] 3 SLR 1205 (refd)
NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 2 SLR (R) 565; [2008] 2 SLR 565 (refd)
PP v Dahalan bin Ladaewa [1995] 2 SLR (R) 124; [1996] 1 SLR 783 (refd)
R v Christie [1914] AC 545 (refd)
R v Sang [1980] AC 402 (refd)
R v Secretary of State for Transport, Ex parte Factortame Ltd (No 2) (Case C 213/89) ; [1991] 1 AC 603 (refd)
Stephens v Avery [1988] 1 Ch 449 (refd)
UDL Marine (Singapore) Pte Ltd v Jurong Town Corp [2011] SGHC 153 (folld)
Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR (R) 377; [2007] 4 SLR 377 (refd)
X Pte Ltd v CDE [1992] 2 SLR (R) 575; [1992] 2 SLR 996 (distd)
Computer Misuse Act (Cap 50 A, 2007 Rev Ed)
Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 121 (2)
Evidence Act (Cap 97, 1997 Rev Ed) ss 2 (2) , 32 (1) , 32 (3) , 47 (1) , 47 (4) , 128 (2) , 128 (2) (a) , 128 (2) (b)
Legal Profession Act (Cap 161, 2001 Rev Ed) ss 83 (2) (e) , 83 (2) (h)
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