Cartier International BV v Lee Hock Lee and another application

• Jurisdiction: Singapore
• Judge: G P Selvam JC
• Judgment Date: 30 October 1992
• Neutral Citation: [1992] SGHC 277
• Plaintiff Counsel: Alban Kang with Sheena Jacob (Arthur Loke & Partners),Sukumar Karrupiah with Young Chuan Lee (Ella Cheong & Mirandah)
• Date: 30 October 1992
• Published date: 19 September 2003
• Subject Matter: Infringement,Conviction on circumstantial evidence,Judgments and orders,Grounds of application to be stated in supporting statement,Civil Procedure,Admissibility of hearsay evidence,Best evidence,Necessary to establish that alleged contemnor did in fact with knowledge of terms of judgment or order disobey it,Standard of proof required,Breach of judgment or court order,Trade Marks and Trade Names,Enforcing judgment or court order by order for committal,Circumstantial evidence,Application for order for committal,0 41 r 5(2) & 0 52 r 2 Rules of the Supreme Court 1970,Evidence,Proof of evidence,Enforcement,Nature of application,Contempt of court,Undesigned coincidence of surrounding circumstances capable of proving proposition with accuracy,Nature of,Presumption where person in possession of large quantity of spurious goods bearing unauthorized trademark was in possession of goods
• Docket Number: Suits Nos 1205 of 1988 and 461 of 1989
• Citation: [1992] SGHC 277
• Court: High Court (Singapore)
• Year: 1992

The applications for committal for contempt of court

Cartier International BV (`Cartier`), the plaintiffs in Suit No 1205 of 1988, and Montres Rolex SA (`Rolex`), the plaintiffs in Suit No 461 of 1989, by separate motions applied for the committal of Lee Hock Lee (`the defendant`). Both motions were heard together as joint applications.

Cartier commenced their action as owners of the CARTIER trademark alleging that the defendant infringed their trademark by selling spurious watches bearing their trademark. They particularized their claim by asserting that on 23 May 1988 the defendant had in his possession for purposes of sale 115 pieces of counterfeit CARTIER watches which were seized in a police raid conducted at unit #01-04 Kim Seng Shopping Centre. The defendant entered appearance by his solicitor. Upon his failure to deliver a defence, Cartier applied for and obtained a final judgment on 20 February 1989 which, inter alia, restrained the defendant from infringing Cartier`s registered trademark. Costs were awarded against him. The defendant was served with the order. He paid the sum of $2,500 as costs. Thus the defendant admitted the allegations against him.

In August 1991 Cartier applied for and obtained leave to make an application to the court for an order of committal against the defendant. In a statement filed in compliance with O 52 r 2(2) of the Rules of the Supreme Court 1970 (`the Rules`) Cartier asserted that the defendant had in his possession 132 pieces of counterfeit watches bearing the CARTIER trademark. This time the watches were found not at unit #01-04 but at unit #01-07 Kim Seng Plaza (`unit #01-07`). Kim Seng Plaza and Kim Seng Shopping Centre refer to the same building. The date was 19 March 1991.

The statement was later amended by an order of court to assert that on 4 October 1991 the defendant had in his possession eight pieces of CARTIER counterfeit watches at unit #01-31 Kim Seng Plaza (`unit #01-31`). There were also allegations that the defendant had assisted or allowed others to use his premises for the sale of counterfeit CARTIER watches.

Rolex commenced their action based on their own trademark against the defendant and another. Unlike Cartier, Rolex has no judgment against the defendant. Rolex, however, obtained an ex parte interlocutory order on 17 March 1989. The order restrained the defendant from infringing their trademark `ROLEX` and `ROLEX OYSTER QUARTZ`. Rolex alleged that the defendant disobeyed the injunctions. Their application was based on the following assertions:

(i) The defendant, in breach of the injunction, continued to deal in counterfeit ROLEX watches in that on 19 March 1991 he had for sale at unit #01-07, 129 pieces of counterfeit ROLEX watches.

(ii) Similarly, on 18 June 1991 at unit #01-07 the defendant had for sale 86 counterfeit ROLEX watches.

Both plaintiffs relied to a large extent on circumstantial evidence in support of their application for committal orders. It consisted of grounding affidavits by private investigators who conducted raids under authority of warrants issued by a magistrate. The principal witnesses for the plaintiffs were Tan See Wei and Lim Kim San. There were four supporting witnesses. These witnesses were cross-examined by the defendant`s counsel. The defendant himself had made affidavits. He also gave oral evidence in court and was cross-examined. The defendant also called as his witness Low Meng Chay who had made affidavits.

The ground rules

Before reviewing the evidence, certain ground rules governing an application to commit a person for contempt of court proceedings must be stated.

First, where the court is asked to punish the alleged contemnor by incarceration, the charge against him must be proved to the high standard required in a criminal charge: Re Bramblevale Ltd 1 and Dean v Dean .2

Secondly, notwithstanding the Bramblevale principle of criminal standard of proof, an application for an order for committal under the Rules is a civil proceeding. Further when the application is ancillary to main proceedings it is an interlocutory application. Accordingly hearsay evidence may be included in affidavits as permitted by O 41 r 5(2) of the Rules: Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV & Ors (No 2) .3

Thirdly, in accepting hearsay evidence `the court should ensure that no injustice results from the admission of such evidence`: Savings & Investment Bank `s case.3

The plaintiffs` evidence: the first raid (19 March 1991)

Tan See Wei, a professional investigator, was the main witness for the plaintiffs. A summary of his evidence given by affidavit and oral testimony is as follows.

Having obtained three search warrants in respect of units #01-04, #01-07 and #01-40 Kim Seng Plaza, he arrived there on 19 March 1991 to execute the search warrants. Units #01-07 and #01-40 were locked. He executed a search warrant at unit #01-04. The defendant was present at that unit. A search was conducted in his presence. No counterfeit goods were found at unit #01-04. Tan See Wei then required the defendant to unlock unit #01-07 but the defendant claimed that he was not holding the keys to the premises. Later a male Chinese who was known to Tan See Wei as Low Meng Chay and as a professional `stand-in` arrived at unit #01-04. Low Meng Chay did not appear to have any keys on him. They all then proceeded to unit #01-07. During this time the defendant handed to Low Meng Chay a bunch of keys for unit #01-07 which was only three units away from unit #01-04. Tan See Wei was positive that it was the defendant who had the bunch of keys. Low Meng Chay tried to unlock the door of the unit but had difficulty. At that point, the defendant took back the keys from Low Meng Chay and opened the door with no difficulty. Inside the unit there were about 22 trays containing counterfeit watches displayed on a table top. The watches were affixed with various counterfeit trademarks. A thorough search was conducted in the presence of Low Meng Chay. The defendant was observed to occasionally leave and return to unit #01-07. The goods seized included 132 pieces of counterfeit CARTIER watches and 129 pieces of counterfeit ROLEX watches. Low Meng Chay claimed ownership of the watches and other goods seized. An acknowledgement for the goods seized was issued to him.

Unit #01-07, according to Tan See Wei, was owned by the defendant. The defendant admitted that he was the owner of the unit. The unit, however, displayed signboards of two business names :

(i) `Top 100 Superstar Trading` which was registered under the name of Low Meng Chay as a sole proprietor; and

(ii) `Seahorse Batik Enterprise` which was a sole-proprietorship in the name of Lee Hock Lye who was believed to be a relative of the defendant. Lee Hock Lye was in fact the defendant`s brother. Both these businesses had unit #01-07 as their registered address.

According to Tan See Wei, Low Meng Chay was well known to voluntarily accept liability in several instances when infringing goods were seized. He worked for counterfeiting syndicates. He had been implicated in several other raids conducted at different locations where he had come forward to claim ownership of the counterfeit goods. The particulars of the raids were as follows:

Date of raid Search Warrant No Premises

25 October 1990 533/90 #B1-118 Lucky Plaza

5 November 1990 539/90 #01-01 Lucky Plaza

11 December 1990 581/90 #02-06 Lucky Plaza

9 January 1991 22/91 Blk 113 #01-548

Bukit Merah View

Copies of acknowledgement slips which Low Meng Chay signed as owner were exhibited to Tan See Wei`s affidavits. The hypothesis of Tan See Wei was that Low Meng Chay was a professional `stand-in` or `fall guy` for the defendant and it was the defendant who had the true possession and control of unit #01-07 and the counterfeit goods.

The second raid (18 June 1991)

On 18 June 1991 Tan See Wei led a team of investigators armed with search warrants to raid units #01-04, #01-07, #01-30 and #01-31 of Kim Seng Plaza. At about 12.50pm on 18 June 1991 a search warrant was executed at unit #01-07 by him. A female Chinese was attending to two Japanese tourists who were looking at some counterfeit watches. He requested the Japanese to leave the premises. He explained the purpose of his visit and showed the search warrant to the female Chinese. He requested her particulars but she claimed that she was merely an employee. About that time a male Chinese who identified himself as Wong Eng Kwee arrived at the unit and claimed that he was a friend of the `boss`. At that juncture, the female Chinese informed him that he could deal with the male Chinese and left the unit quickly without furnishing her particulars. Thus Wong Eng Kwee took charge of the place. A search was conducted in the presence of Wong Eng Kwee.

Various brands of goods were seized. There were 86 pieces of counterfeit ROLEX watches but this time there were no counterfeit CARTIER watches. At about 1.25pm Low Meng...