Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 August 2020
• Neutral Citation: [2020] SGCA 76
• Docket Number: Civil Appeal No 226 of 2019, Civil Appeal No 228 of 2019 and Summons No 64 of 2020
• Date: 14 August 2020
• Published date: 20 August 2020
• Plaintiff Counsel: Pereira George Barnabas and Balachandran Arun Amraesh (Pereira & Tan LLC)
• Defendant Counsel: Afzal Ali, Hiew E-Wen, Joshua and Lim Yong Sheng (Allen & Gledhill LLP)
• Court: Court of Appeal (Singapore)
• Hearing Date: 08 July 2020
• Subject Matter: Civil Procedure,Ambit of order,Riddick undertaking,Test for release from Riddick undertaking,Anton Piller orders

Steven Chong JA (delivering the judgment of the court): Introduction

One of the core principles which regulates the conduct of civil proceedings is that documents ordered to be disclosed are to be used only for the purposes of the civil proceedings from which the disclosure was made. In fact, this court in its recent decision in ED&F Man Capital Markets Limited v Straits (Singapore) Pte Ltd [2020] SGCA 64 held that this core principle applies equally to documents which were disclosed to resist interlocutory applications even if such disclosure was, strictly speaking, not made under compulsion of a court order. The key consideration which informs the court’s strict approach is to encourage litigants to provide full and complete discovery in the interest of justice with the concomitant assurance that the disclosed documents will not be used for any collateral purpose save with express leave of court. Typically, in situations where documents have been disclosed under compulsion, an application for leave of court to use the documents for purposes extraneous to the civil proceedings would require a release of the Riddick undertaking, an implied undertaking to the court which owes its name to the decision of Riddick v Thames Board Mills Ltd [1977] 1 QB 881 (“Riddick”).

This appeal concerns an application for release of the Riddick undertaking in order to report the commission of several alleged criminal offences to various enforcement authorities. The complication here is that some of the documents were disclosed to the enforcement authorities not only without leave of court, but in direct breach of undertakings to the court and to the defendants. Therefore, the application before this court was for retrospective leave in respect of those documents already disclosed as well as for prospective leave to disclose additional documents ostensibly to aid the investigations.

This appeal has provided this court with the timely opportunity to revisit some of its earlier decisions on the relevant considerations in granting such leave. On this occasion, we have the benefit of leading decisions on this issue from several Commonwealth jurisdictions. In this judgment, given that the purpose of the application is to facilitate the reporting of alleged criminal offences, it will be particularly relevant to examine how the privilege against self-incrimination will feature in the exercise of the court’s discretion and whether the motive of the applicant is relevant in the ultimate analysis.

Facts The parties

Amber Compounding Pharmacy Pte Ltd and Amber Laboratories Pte Ltd (collectively, “Amber”) are in the specialized trade of compounding medical and pharmaceutical products, which involves preparing personalized medications for patients based on prescriptions. Lim Suk Ling Priscilla (“Lim”) worked for Amber before setting up UrbanRx Compounding Pharmacy Pte Ltd (“UrbanRx”), a company which is in the same business as Amber.¹

The search orders

On 14 February 2018, Amber commenced the present action against Lim and UrbanRx (collectively, “the defendants”), claiming, among other things, that they had misappropriated Amber’s confidential information and trade secrets for the purposes of benefitting UrbanRx’s business. The alleged information which had been misappropriated included lists of Amber’s patients, clients, prices, stocks, vendors, and standard operating procedures. Such lists, it was alleged, were specific to Amber’s operations, and constituted sensitive information that had to be strictly guarded.²

To support its claim against the defendants, on 15 March 2018, Amber applied ex parte for search orders against the defendants. The events surrounding the execution of the search orders are highly relevant in informing the parties’ understanding on the specific ambit and purpose of the search orders, and it will thus be useful to set them out in some detail.

The purpose of the search orders was to retrieve the confidential information which had been purportedly misappropriated by the defendants before it was deleted by the defendants. Such information could then be used in support of Amber’s action against the defendants.³

In its written submissions to support the search order applications, Amber expressly stated that the defendants’ “devices will then be searched using certain keywords so that the ambit of the search will be limited to data relevant to [Amber] and will not be oppressive to the [defendants]” [emphasis in original omitted; emphasis added in italics].⁴ Significantly, Amber’s founder and Managing Director, Jayne Wee Shir Li, confirmed on affidavit that “the purpose of seeking a search order is purely and solely for the purpose of obtaining further evidence that is necessary to my companies’ case without risking the [defendants’] destruction of the said evidence” [emphasis added].⁵

Pursuant to its submissions, Amber sought, as against both defendants, the disclosure of the following items:⁶ all e-mail correspondence on the defendants’ email accounts (“item (a)”); all electronic, magnetic, optical, electrochemical, or other data processing devices which could process, store, communicate data, such as computers, mobile phones, thumb drives and other electronic items (“item (b)”); and all documents, plans, drawings, notes, memoranda, and power point slides (whether in soft or physical copy) relating to the trade secrets and/or confidential and/or proprietary information of Amber (“item (c)”).

As against UrbanRx alone, Amber further sought the disclosure of: samples of all products marketed by UrbanRx and sold by UrbanRx to the public (“item (d)”); and samples of all products marketed by UrbanRx and sold by UrbanRx to clinics that were customers of UrbanRx (“item (e)”).

On 3 April 2018, the High Court Judge (“the Judge”) granted the search orders with respect to items (a), (b) and (c). As regards items (d) and (e), the Judge noted those items were “in relation to [UrbanRx’s] property and not [Amber’s] property, and ha[d]nothing to do with preservation of [Amber’s] property”. Accordingly, the Judge did not grant leave to search for and seize items (d) and (e).⁷

In the search orders, Amber also gave the express undertaking “[n]ot, without the leave of the Court, … to use any information or documents obtained as a result of the carrying out of this Order except for the purposes of these proceedings or to inform anyone else of these proceedings until the trial or further order” [emphasis added].⁸

Both search orders were executed on 17 April 2018, in the presence of Lim and a supervising solicitor. In total, more than 100,000 documents were seized pursuant to the search orders.⁹

The setting-aside application and Listing Exercise

About a month after the execution of the search orders, on 10 May 2018, the defendants filed HC/SUM 2169/2018 to set aside the search orders (“the setting-aside application”). In the application, the defendants prayed, inter alia, for the discharge of the search orders, for Amber to return all items seized pursuant to the said orders, and for Amber to destroy all duplicates, copies and/or imaging of all items made during the searches. To support the application, the defendants alleged that: (a) there were irregularities in the execution of the search orders as the solicitors who had supervised the search did not advise the defendants of their right to refuse entry to “anyone who could gain commercially from anything he might read or see on the premises”; (b) Amber had not returned the originals of all the seized documents within two days of their removal, in breach of Paragraph 2 of Schedule 4 of the search orders; and (c) the ambit of the search orders was too wide, as it gave Amber “carte blanche to all documents belonging/relating” to the defendants.¹⁰

The Judge first heard the setting-aside application at a Judge Pre-Trial Conference (“JPTC”) on 23 May 2018. During the hearing, the Judge fixed the timelines for the filing of affidavits and submissions in relation to the setting-aside application. She also directed the parties to sort out the seized documents that clearly belonged to either Amber or the defendants.¹¹

On 31 May 2018, solicitors for both parties provided their signed express undertakings not to hand over the seized documents to their respective clients “and/or any other 3rd party and/or any other solicitors”.¹²

On 4 June 2018, the parties appeared before the Judge again, and Amber’s then-counsel informed the court that solicitors’ undertakings had been provided to each other not to release any of the documents to any other parties. Both Amber’s and the defendants’ counsel agreed that documents which belonged to the other party ought to be returned to that party. However, the defendants’ counsel, Mr George Pereira, reserved the defendants’ position that Amber was not entitled to take whatever documents it wanted.¹³

As the parties were in agreement that the documents ought to be returned to their rightful owners, the Judge directed the parties to come to a workable solution to sort out the ownership of the documents. She also reminded the parties that a search order was not the time to do comprehensive discovery of documents, and that discovery would take place in the course of the proceedings.¹⁴

The parties returned before the Judge on 18 July 2018. Instead of dealing with the setting-aside application proper, the Judge directed, based on their agreement that the documents would be returned to their rightful owners, that the parties were to carry out a “Listing Exercise”, whereby:¹⁵ Amber was to determine the ownership of the documents based on 32 search terms by 8 August 2018. The list of these documents was to be provided to the defendants by 22 August 2018. Based on that list, both counsel were to agree on which documents belonged to Amber and the defendants respectively. Any disputed...