Aurol Anthony Sabastian v Sembcorp Marine Ltd

• Jurisdiction: Singapore
• Judgment Date: 17 January 2013
• Date: 17 January 2013
• Docket Number: Civil Appeal No 71 of 2012
• Court: Court of Appeal (Singapore)

Aurol Anthony Sabastian

Plaintiff

and

Sembcorp Marine Ltd

Defendant

[2013] SGCA 5

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

V K Rajah JA

Civil Appeal No 71 of 2012

Court of Appeal

Civil Procedure—Costs—Principles—Court's discretion to deny successful appellant of costs of appeal so as to record disapprobation of party's conduct

Contempt of Court—Criminal contempt—Ambiguity in terms of order breached—Whether solicitor's letter purporting to explain terms of order could cure ambiguity—Whether ambiguity to be resolved in favour of defendant

Contempt of Court—Criminal contempt—Sealing order and not express non-disclosure order—Whether criminal contempt made out where person in possession disclosed information

Contempt of Court—Criminal contempt—Whether party obliged to consult or obtain sanction of Attorney-General before commencing proceedings for criminal contempt—Failure to seek view of Attorney-General—Relevance of Attorney-General's view

This appeal arose from proceedings which transpired out of Suit No 351 of 2010 (‘Suit 351’) between the respondent, Sembcorp Marine Ltd (‘SCM’) and companies in which the appellant, Aurol Anthony Sabastian (‘Aurol’) was director.

In Suit 351, Wong Weng Sun of SCM filed various affidavits. In his fourth affidavit filed on 26 November 2010 (‘Wong's 4th affidavit’), Wong detailed confidential information which, if disclosed into the public domain, could be exploited by non-parties to the SCM Group's detriment. Consequently, SCM filed Summons No 5659 of 2010 (‘the Summons’) seeking a sealing order in relation to this affidavit. In support of the Summons, SCM filed another affidavit (‘Wong's 5th affidavit’) and also requested that the Summons itself and this affidavit be sealed. After an ex parte hearing before the assistant registrar (‘the AR’), the AR granted an interim sealing order (‘the interim sealing order’). The terms of the interim sealing order as recorded on the backing sheet of the Summons contained a mistake: the order purported to seal ‘Mr Wong Weng Sun's 5^th supporting affidavit dated 26 November 2010, together with the summons’. Wong's 5th affidavit was dated 3 December 2010, not 26 November 2010; it was Wong's 4th affidavit that was dated 26 November 2010. On the same day, SCM's solicitors Drew & Napier LLC (‘Drew’) wrote to the solicitors of the defendants in Suit 351 informing them of the hearing and stating that the court had ordered ‘the Summons itself and the 5^th affidavit of Mr Wong Weng Sun filed in support of the Summons’ be sealed. Aurol received and read all these documents. After a telephone conversation with Conrad Raj (‘Raj’), a senior journalist with the Today Newspaper (‘Today’) who had previously written about Suit 351, Aurol e-mailed Raj a copy of the Summons and Wong's 5th affidavit. On 13 December 2010, Raj wrote an article in Today detailing that the Summons had been filed and setting out the reasons for the application. SCM requested Mediacorp Pte Ltd (‘Mediacorp’) which owned and published Today to reveal its source for the information but it refused to do so. In Originating Summons No 74 of 2011, SCM obtained an order from an assistant registrar ordering Mediacorp to reveal its source, and this order was upheld on appeal to a High Court judge. On 5 April 2011, Aurol wrote to the High Court and SCM identifying himself as the source of the leak, apologising for the breach and saying that there was no intention to set out to breach the interim sealing order.

SCM commenced committal proceedings against Aurol pursuant to O 52 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) and by way of Originating Summons No 465 of 2011. Leave was granted by the High Court on 30 June 2011. On 1 July 2011, SCM filed Summons No 2861 of 2011 applying for an order that Aurol be committed to prison for contempt. On 19 March 2012, the High Court judge found Aurol guilty of contempt. On 28 September 2012, the judge sentenced Aurol to five days' imprisonment. Aurol appealed to the Court of Appeal.

Held, allowing the appeal:

(1) The Attorney-General (‘the AG’) stands in the constitutional role of guardian of the public interest as the Public Prosecutor and also plays the function of a disinterested prosecutor. Therefore, while a private individual was entitled to institute proceedings for criminal contempt, such an individual was obliged, at least in the absence of any particular concerns of urgency, to first consult the AG before commencing committal proceedings under O 52 r 2 of the Rules of Court: at [53] .

(2) Upon consulting the AG, should the AG decide to take up the matter, he would do so pursuant to his constitutional power to take conduct of the prosecution. Should he decline to do so, the applicant could then commence proceedings on its own accord but in doing so he would be obliged to join the AG as a party and lay all the facts before the court including any expressed views of the AG. This would enable the court to have the benefit of the AG's views in deciding whether the matter should be pursued: at [54] .

(3) The AG's disinclination to commence proceedings for criminal contempt would not necessarily be determinative of the court's decision in relation to either the granting of leave under O 52 r 2 (1) of the Rules of Court or the eventual making of an order for committal. Each case would be determined on its merits, with the AG's views taken into consideration: at [56] .

(4) SCM had not sought the views of the AG before commencing committal proceedings against Aurol for criminal contempt and it followed that the proceedings were procedurally defective. The court might exercise its inherent jurisdiction to cure such irregularity, but ought, as a general rule, exercise such discretion sparingly and for compelling reasons only. No such exceptional circumstances existed in the present case: at [67] and [68] .

(5) While the court would not go so far as to demand absolute precision in the drafting of the terms of an order before criminal contempt could be found, those terms had to be sufficiently certain such that a third party, who while not directly bound by an order of court but might nevertheless be held liable for criminal contempt if he acted to deliberately frustrate the purpose of the order, would reasonably be taken to be in a position to ascertain the said purpose upon perusing it: at [72] and [74] .

(6) The interim sealing order was ambiguous on its face as to which affidavit it referred to. The 6 December 2010 letter from Drew could not clarify such ambiguity as at its highest it could only set out Drew's understanding of the order. That all the surrounding references to sealing appeared to have been to Wong's 4th affidavit also created further ambiguity. The confidential information sought to be protected was contained in Wong's 4th affidavit and not Wong's 5th affidavit. These circumstances together created reasonable doubt. Aurol's dishonourable intentions and his acting on those intentions did not constitute a crime as there was reasonable doubt as to what the purpose of the interim sealing order was: at [81] , [84] , [89] , [94] and [96] .

(7) Aurol's disclosure of the Summons was technically a violation but, alone, it did not carry a real risk of interference with the administration of justice: at [97] .

(8) In proceedings for criminal contempt, the court would not adopt a myopic and blinkered view of the scope of an order - it was the purpose for which an order was granted that would guide the court's determination of its true effect. While in the narrow sense the granting of the interim sealing order prevented individuals from inspecting the sealed document, it was evident that the AR intended that the public not have access to the confidential information through any other means. Publication of the sealed documents therefore constituted a breach even though it did not entail inspection of the court file: at [98] , [99] and [101] .

(9) Aurol's behaviour in the entire episode revealed a reprehensible disregard for the court and a manifest willingness to undermine a litigant's right to avail itself of the court's processes, and also revealed a lack of probity. For these reasons, the court registered its disapproval of his conduct by not awarding him costs of the appeal: at [105] and [115] .

AG v Punch Ltd [2003] 1 AC 1046 (folld)

AG v Tee Kok Boon [2008] 2 SLR (R) 412; [2008] 2 SLR 412 (refd)

AG v Times Newspapers Ltd [1974] AC 273 (folld)

AG v Times Newspapers Ltd [1992] 1 AC 191 (folld)

Bramblevale Ltd, Re [1970] Ch 128 (folld)

Cheng William v Loo Ngee Long Edmund [2001] 2 SLR (R) 626; [2001] 3 SLR 581 (refd)

Churchman v Joint Shop Stewards' Committee of the Workers of the Port of London [1972] 1 WLR 1094 (refd)

Con-Mech (Engineers) Ltd v Amalgamated Union of Engineering Works (Engineering Section) [1973] ICR 620 (refd)

Dobson v Hastings [1992] Ch 394 (refd)

Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239; [2008] 2 SLR 239 (refd)

Lee Seng Choon Ronnie v Singapore Island Country Club [1993] 1 SLR (R) 557; [1993] 2 SLR 456 (refd)

Ng Eng Ghee v Mamata Kapildev Dave [2009] 4 SLR (R) 155; [2009] 4 SLR 155 (refd)

Pelling v Hammond C/00/2363 (22 September 2000) (folld)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR (R) 518; [2007] 2 SLR 518 (refd)

PP v Norzian bin Bintat [1995] 3 SLR (R) 105; [1995] 3 SLR 462 (refd)

Seaward v Paterson [1897] 1 Ch 545 (refd)

Shadrake Alan v AG [2011] 3 SLR 778 (refd)

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Young v United States ex rel Vuitton et Fils SA 481 US 787 (1987) (refd)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 35 (8) , 93

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss10, s11, 11 (1) , 11 (10) , 12, 13

Penal Code (Cap 224, 2008 Rev Ed) s 228

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O...