Lee Wei Ling and another v Attorney-General

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JA
• Judgment Date: 28 September 2016
• Neutral Citation: [2016] SGHC 207
• Citation: [2016] SGHC 207
• Defendant Counsel: Hui Choon Kuen, Koo Zhi Xuan, Germaine Boey (Attorney-General's Chambers)
• Published date: 23 August 2017
• Hearing Date: 14 July 2016
• Plaintiff Counsel: Lee Eng Beng, SC, Paul Tan, Chew Xiang (Rajah & Tann LLP)
• Date: 28 September 2016
• Court: High Court (Singapore)
• Docket Number: Originating Summonses No 816 of 2015
• Subject Matter: Copyright,Ownership,Contractual terms,Contract

Tay Yong Kwang JA:

This Originating Summons No 816 of 2015 concerns the interpretation of an interview agreement signed in 1983 (“the Interview Agreement”) by Lee Kuan Yew (“LKY”), the first Prime Minister of Singapore, Wong Chooi Sen (“Wong”), the then Secretary to the Cabinet and Mrs Lily Tan (“Tan”), the then Director of the Archives and Oral History Department, Ministry of Culture, concerning the tape recordings and transcripts of the interviews conducted with LKY between 8 July 1981 and 5 July 1982 (“the Transcripts”). The Transcripts are presently in the custody of Tan Kee Yong, the current Secretary to the Cabinet (“Cabinet Secretary”).

The Plaintiffs are the daughter and the younger son of LKY. As executors of the estate of LKY (“the LKY estate”), they brought this Originating Summons seeking the following declaratory relief in respect of the Interview Agreement and costs of these proceedings: All rights accorded to LKY under the Interview Agreement are vested in the LKY estate (“Declaration (a)”); The LKY estate is entitled to use, and have copies of the Transcripts (“Declaration (b)”); There shall be no access to, supply of copies of, or use of the Transcripts by anyone until 23 March 2020 without the express written permission of the LKY estate (“Declaration (c)”); and The Cabinet Secretary, as custodian of the Transcripts, is under a duty to inform the LKY estate of any request made after the death of LKY for access to, supply of copies of, or use of the Transcripts, and of the grant of any such request without the express written permission of the LKY estate (“Declaration (d)”).

The Government, through the Attorney General, opposed the application in its entirety on the basis that the Transcripts were protected by the Official Secrets Act (Cap 213, 2012 Rev Ed) (“OSA”) and that the Plaintiffs did not have the right under the Interview Agreement to demand the use and copies of the Transcripts.

The factual background

The contents of the Interview Agreement are set out as follows:

I, Lee Kuan Yew, do hereby give to the Director, Archives and Oral History Department, Ministry of Culture, and the Secretary to the Cabinet for use and administration, on the terms and conditions hereinafter provided, the tape recordings and transcripts of the interview conducted with me between 8 Jul 1981 – 5 Jul 1982.

2. The use and administration of the recordings and transcripts shall be subject to the following terms and conditions:-

(a) I retain to myself all copyright including literary property rights to the recordings and transcripts until the year two thousand (2000) or 5 years after my death, whichever is later, at which time all copyright including any literary property rights in the recordings and transcripts shall vest in the Government of Singapore;

(b) The recordings and transcripts shall be kept in the custody of the Secretary to the Cabinet until the year two thousand (2000) or 5 years after my death, whichever is later, when it may, at the discretion of the Government, be handed over to the custody of the Director, Archives and Oral History Department;

(c) There shall be no access to, supply of copies of or use of the recordings and transcripts by anyone until the year two thousand (2000) or 5 years after my death, whichever is later, without my express written permission, and subject to such conditions as may be stated therein;

(d) After the year two thousand (2000) or 5 years after my death, whichever is later, the recordings and transcripts may be made available for such research as the Government may approve.

3. Nothing in this agreement precludes any use I may want to make myself of the recordings and transcripts or the information therein. In the event of the publication by me of the transcripts of the interview all copyright including any literary property rights in the recordings and transcripts shall, notwithstanding the provisions of clause 2(a) of this Agreement, continue to be retained by me even after the year two thousand (2000) or 5 years after my death, whichever is later. In such an event the Government shall have the right to make the recordings and transcripts available for research approved by it and such other rights over the recordings and transcripts as I may grant. 4. This agreement may be revised or amended by mutual consent of the parties thereto.

LKY signed as interviewee on 21 February 1983. Tan signed as Director, Archives and Oral History Department on 7 March 1983 and Wong signed as Secretary to the Cabinet on 22 February 1983.

The three signatories to the Interview Agreement are all deceased.¹ LKY passed away on 23 March 2015. The drafter of the Interview Agreement appeared to be the then Attorney General Tan Boon Teik who is also deceased.² There is thus no direct evidence available as to the circumstances and discussions that led eventually to the Interview Agreement. Therefore, the interpretation of the Interview Agreement has to be based on the documents in existence at the material time insofar as they are still available now.

During the initial stages of this matter, there was an application by the Plaintiffs in Summons No 5810 of 2015 to admit a further affidavit setting out the circumstances as to how the Transcripts, then kept at 38 Oxley Road (LKY’s home) while LKY was alive, came into the possession of the Cabinet Secretary after LKY passed away. In my view, those details were unnecessary and quite irrelevant to my decision on the issues before me. The details would only serve to distract from the real issues. The real issues were the interpretation of the Interview Agreement and whether the OSA had any bearing on its interpretation. Accordingly, I dismissed the Plaintiffs’ application and expunged those parts of any affidavits and other documents which set out or referred to the same details. At the request of the solicitors for the Plaintiffs and with the consent of the Attorney General, the time for any application for leave to appeal against my decision as set out in this paragraph was extended to 7 days after the release of the judgment for this Originating Summons.

The relevant background facts to this case are as follows: The Transcripts were in 38 Oxley Road at the time of LKY’s death on 23 March 2015. There is no record of the circumstances under which the Transcripts were temporarily transferred from the Cabinet Secretary to LKY before his death.³ Sometime between 23 March 2015 and 5 May 2015, a member of LKY’s family, thinking that the Transcripts were official government documents, took the Transcripts and handed them over to the Cabinet Secretary. This was done without the knowledge or consent of the LKY estate. The LKY estate first became aware of the existence of the Transcripts when it was told by the said family member on 10 May 2015 that there was an acknowledgment of receipt of the Transcripts from the Cabinet Secretary. Sometime in late May 2015, the Second Plaintiff requested to peruse the Transcripts. The Government agreed to this request on condition that the Second Plaintiff do so at the Ministry of Home Affairs (“MHA”) and sign an undertaking as to secrecy under the OSA in respect of the Transcripts before perusal. The Second Plaintiff, on the understanding that the Transcripts were covered by the OSA and having been told by the said family member that they were marked “Secret”, complied accordingly and was permitted to look through the Transcripts at the MHA. After looking through the Transcripts, the second Plaintiff realized that the Transcripts were not marked “Secret”.

In response to my queries and directions made before the hearing on 14 July 2016, the Government produced a Bundle of Documents containing correspondence between the former Attorney-General Tan Boon Teik and Wong, who was also the Secretary to LKY, regarding the drafting of the Interview Agreement (“the Correspondence”). The Bundle of Documents also included Parliamentary Debates suggesting the existence of a government project to record oral history for Singapore. The Government confirmed that there were no other documents available in its possession that would shed light on the drafting of the Interview Agreement. The Government also confirmed that there is no express statement in the Transcripts that it is covered by the OSA.

The Plaintiffs’ arguments

The Plaintiffs took the position that to the extent the OSA was found to apply to the Transcripts, the LKY estate would comply with the OSA. However, they argued that the issue in contention was a purely contractual one regarding competing interpretations of certain clauses of the Interview Agreement. In their view, the issue of the applicability of the OSA to the Transcripts was irrelevant to the present case.⁴ This was so for the following reasons:⁵ The Interview Agreement was entered into with the Director, Archives and Oral History Department, Ministry of Culture and was intended to provide for the archival, vesting of copyright, use and future publication of the Transcripts. The Interview Agreement contained no reference, explicit or implicit, to the OSA or other confidentiality considerations. The Interview Agreement is not itself subject to the OSA. There is nothing that permits the importation of the OSA to vary or modify the appropriate interpretation of contractual rights under the Interview Agreement. Section 5(1) of the OSA applies only to actual communication or use of secret official documents. Even if the Transcripts were found to be covered by the OSA, the contractual rights governing their use, including the LKY estate’s right to receive and hold a copy of the Transcripts, are not and cannot be affected by the OSA.

Thus, the Plaintiffs argued that assertions made by the Government regarding the contents of the Transcripts are irrelevant, and that no finding as to the...