Aurol Anthony Sabastian v Sembcorp Marine Ltd

• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 17 January 2013
• Neutral Citation: [2013] SGCA 5
• Citation: [2013] SGCA 5
• Published date: 06 February 2013
• Docket Number: Civil Appeal No 71 of 2012
• Hearing Date: 09 November 2012
• Plaintiff Counsel: George Lim SC and Foo Say Tun (Wee, Tay & Lim LLP)
• Defendant Counsel: Davinder Singh SC, Pardeep Singh Khosa and Vishal Harnal (Drew & Napier LLC)
• Subject Matter: Contempt of Court,Criminal Contempt

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This appeal concerns an alleged breach by the appellant, Mr Anthony Sabastian Aurol (“Aurol”), of an interim sealing order made by an Assistant Registrar (“the AR”). Upon the application of the respondent, Sembcorp Marine Ltd (“SCM”), in Originating Summons No 465 of 2011 (“OS 465 of 2011”) for an order of committal against Aurol for contempt of court, Aurol was found guilty by the High Court and sentenced to five days’ imprisonment. The decision of the High Court Judge (“the Judge”) finding Aurol guilty of contempt is reported in Sembcorp Marine Ltd v Aurol Anthony Sabastian [2012] 2 SLR 645.

The present appeal is brought by Aurol against his conviction and sentence. It was heard together with Civil Appeal No 66 of 2012 (“CA 66 of 2012”), which was Aurol’s appeal against the refusal of the High Court to grant him leave to adduce further evidence at a very late stage in the proceedings below. Following brief oral arguments before us, we dismissed CA 66 of 2012.

The factual background

The background to the present appeal revolves around a related action in Suit 351 of 2010 (“Suit 351”) which was brought by SCM and PPL Shipyard Pte Ltd (“PPLS”) against PPL Holdings Pte Ltd (“PPLH”) and E-Interface Holdings Limited. SCM had entered into a joint venture with PPLH pursuant to which each party was to and did come to own shares in PPLS. Under the joint venture agreement, each party was granted pre-emption rights in the event the other party wished to sell its shares. However, the parent company of PPLH, Baker Technology Ltd (“Baker”), which was not a party to the joint venture agreement, sold its shares in PPLH to a competitor of SCM, ostensibly by-passing the restrictions imposed by the pre-emption rights. This subsequently led to the filing of Suit 351 by SCM.

Aurol was a director of Baker, PPLH and PPLS at the material time. He also had indirect interests in Baker and had played a central role in arranging the sale of Baker’s shareholding in PPLH to SCM’s competitor.

Wong’s 4th affidavit

Mr Wong Weng Sun (“Wong”) is the President and Chief Executive Officer of SCM. He filed various affidavits in Suit 351 in that capacity. In his 4th affidavit (“Wong’s 4th affidavit”) filed on 26 November 2010, Wong set out fairly detailed information about the SCM Group’s foreign exchange hedging policies. It subsequently occurred to SCM that this was confidential information and if the release of that information into the public domain was not restrained, it could be exploited by non-parties to the detriment of the SCM Group.¹ On 3 December 2010, SCM filed Summons 5659 of 2010 (“SUM 5659”) seeking a sealing order in relation to various documents including Wong’s 4th affidavit.

SUM 5659

Specifically, the following reliefs were sought in SUM 5659:² That SUM 5659 itself and all its contents including the supporting affidavit be sealed; That Wong’s 4th affidavit be sealed from non-parties to Suit 351; and That any further affidavit in Suit 351 containing references to, or quotations or extracts from exhibit WWS-47 to Wong’s 4th affidavit, be sealed from non-parties to Suit 351. The affidavit filed in support of SUM 5659 and referred to in [6(a)] above was Wong’s 5th affidavit. SUM 5659 and Wong’s 5th affidavit were filed together on 3 December 2010.

Interim Sealing Order of 6 December 2010

On 6 December 2010, counsel for SCM appeared ex parte before the AR on duty, seeking an urgent hearing date for SUM 5659 to be heard by a High Court Judge. The minutes of the hearing before the AR were recorded on the backing sheet of the summons and read as follows:

Bernette Meyer and Mr Issac Lum for Pf

PC: Application is for the sealing of an affidavit that my client has filed a week before, on 26 Nov 2010. And also any further affidavits filed in this Suit which refers to a exhibit WWS-47 in that affidavit. Other side expected to file an affidavit this Friday. Seeking an urgent hearing date for this sealing application. And also to ask that in the interim, before that hearing, for this affidavit to be sealed such that non-parties to the suit cannot inspect the affidavit. We asked for consent to the sealing last week but did not receive.

Ct: Application fixed for Friday 10 December 2010 on the usual OS SUMS list at 9am. In the interim (till the hearing of the application), Mr Wong Weng Sun’s 5th supporting affidavit dated 26 November 2010, together with the summons, are to be sealed as against non-parties to the Suit. To serve on all parties.

As it turned out, the AR had made a mistake: 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. The AR’s order was not extracted in the usual way. As a result, this notation on the backing sheet of the summons is the only record of the order that was made by the AR on 6 December 2010.

6 December 2010 letter

On the same day, after the AR had made the interim sealing order, SCM’s lawyers, Drew & Napier LLC (“Drew”), wrote to the lawyers acting for the defendants in Suit 351, Straits Law Practice LLC (“Straits Law”), informing them of the hearing date for SUM 5659. The letter also stated the following:³

... Please be informed that the Court has granted an interim order that until the hearing of the Summons, the Summons itself and the 5th Affidavit of Mr Wong Weng Sun filed in support of the Summons be sealed as against non-parties to the Suit.

On 7 December 2010, Drew served a copy of SUM 5659, the interim sealing order (as recorded on the backing sheet of the summons) as well as Wong’s 5th affidavit on Straits Law. It is undisputed that copies of SUM 5659, the interim order, Wong’s 5th affidavit and Drew’s letter of 6 December 2010 were sent to Aurol on or prior to 9 December 2010.⁴ It is also undisputed that Aurol had received and read all of these documents on or before that date.⁵

Aurol’s conversation with Conrad Raj on 10 December 2010

Mr Conrad Raj (“Raj”) is a senior journalist with the Today Newspaper (“Today”) and an old friend of Aurol’s. Raj had previously published an article on 2 July 2010 in Today, commenting on the fall-out between SCM and Baker. Raj and Aurol had a telephone conversation on 10 December 2010.⁶ There is some dispute as to whether it was Raj who called Aurol or the other way around; there is also some dispute as to what exactly transpired in the course of that conversation.

Aurol emails Raj SUM 5659 and Wong’s 5th affidavit

On the same day (10 December 2010) following from their conversation, Aurol emailed a copy of SUM 5659 and Wong’s 5th affidavit to Raj.

The 13 December 2010 Today article

On 13 December 2010, an article written by Raj was published in Today detailing the fact that SUM 5659 had been filed and setting out the reasons for the application.

This prompted an immediate reaction from SCM. Its lawyers wrote to Mediacorp Pte Ltd (“Mediacorp”) which owned and published Today, drawing attention to the alleged breach of the interim sealing order and asking Mediacorp to name the source of the information which Raj had published in his article. Upon Mediacorp’s refusal to reveal its source, SCM commenced Originating Summons No 74 of 2011 (“OS 74 of 2011”) against Mediacorp.

Mediacorp ordered to reveal its source

On 7 March 2011, the AR who heard OS 74 of 2011 at first instance ordered Mediacorp to reveal its source. Mediacorp appealed this decision but the order was upheld by the High Court on 31 March 2011.

The apology

On 5 April 2011, Aurol wrote to the High Court and SCM. The letter was written on a PPLH letterhead but was signed by Aurol as a director. Aurol appeared to have identified himself as the source of the leak. He also stated as follows in the letter:⁷

We humbly and sincerely apologise to this Honourable Court for breaching the interim order dated 6 December 2010. We have the greatest respect for this Honourable Court, and the orders that it makes. We did not intentionally set out to breach the interim order.

SCM commences OS 465 of 2011

On 10 June 2011, by way of OS 465 of 2011 and pursuant to O 52 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”), SCM commenced committal proceedings against Aurol. Leave was granted by the Court on 30 June 2011. On 1 July 2011, SCM filed Summons 2861 of 2011 to apply for an order that Aurol be committed to prison for contempt.

The decision below

On 19 March 2012, the Judge issued his judgment finding Aurol guilty of contempt, and directing that the parties’ submissions on sentence be heard on 23 May 2012. On 28 September 2012, the Judge sentenced Aurol to five days’ imprisonment.

In coming to his decision, the Judge first noted that whatever Aurol might say about the confusion engendered by the mismatch between the reference to the affidavit as Wong’s 5th affidavit and the date ascribed to it, the interim sealing order was clear and ambiguous at least in relation to the summons itself.⁸ The Judge thought that given Aurol’s background, he must have known the difference between a summons and an affidavit. Yet, Aurol had failed to offer any satisfactory explanation as to how he could possibly have misread the order in relation to the summons itself.⁹

In relation to the reference to the affidavit, the Judge found that while there might have been some ambiguity arising from the misdescription referred to above, given that it was also described in the interim sealing order as a “supporting affidavit”, and further given Drew’s letter of 6 December 2010, no ambiguity or doubt could have persisted. In short, the Judge thought that these matters, taken together would have been sufficient to dispel any ambiguity.¹⁰ The Judge concluded that he was permitted to consider all the surrounding facts and circumstances, including Drew’s letter of 6 December 2010 to ascertain the...