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

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeSundaresh Menon CJ,Judith Prakash JA,Steven Chong JA
Judgment Date14 August 2020
Neutral Citation[2020] SGCA 76
Citation[2020] SGCA 76
Date14 August 2020
Defendant CounselAfzal Ali, Hiew E-Wen, Joshua and Lim Yong Sheng (Allen & Gledhill LLP)
Plaintiff CounselPereira George Barnabas and Balachandran Arun Amraesh (Pereira & Tan LLC)
Docket NumberCivil Appeal No 226 of 2019, Civil Appeal No 228 of 2019 and Summons No 64 of 2020
Published date20 August 2020
Hearing Date08 July 2020

[2020] SGCA 76

Court of Appeal

Sundaresh Menon CJ, Judith Prakash JA and Steven Chong JA

Civil Appeal No 226 of 2019, Civil Appeal No 228 of 2019 and Summons No 64 of 2020

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

Pereira George Barnabas and Balachandran Arun Amraesh (Pereira & Tan LLC) for the appellants in Civil Appeal No 226 of 2019 and the respondents in Civil Appeal No 228 of 2019 and Summons No 64 of 2020;

Afzal Ali, Hiew E-Wen, JoshuaandLim Yong Sheng (Allen & Gledhill LLP) for the respondents in Civil Appeal No 226 of 2019, the appellants in Civil Appeal No 228 of 2019 and the applicants in Summons No 64 of 2020.

Case(s) referred to

755568 Ontario Ltd v Linchris Homes Ltd [1990] 1 OR (3d) 649 (refd)

ACL Netherlands BV v Michael Richard Lynch [2019] EWHC 249 (Ch) (refd)

Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545 (refd)

Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 (folld)

Arab Monetary Fund v Hashim [1989] 1 WLR 565 (refd)

ARX v Comptroller of Income Tax [2016] 5 SLR 590 (refd)

Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch) [2006] 1 SLR(R) 901; [2006] 1 SLR 901 (refd)

Attorney-General for Gibraltar v May [1999] 1 WLR 998 (refd)

A T & T Istel Ltd v Tully [1993] AC 45 (refd)

Bailey v Australian Broadcasting Corp [1995] 1 Qd R 476 (refd)

Beckkett Pte Ltd v Deutsche Bank AG [2005] 3 SLR(R) 555; [2005] 3 SLR 555 (overd)

Bengawan Solo Pte Ltd v Season Confectionery Co (Pte) Ltd [1994] 1 SLR(R) 448; [1994] 1 SLR 617 (refd)

BNX v BOE [2018] 2 SLR 215 (refd)

BP Singapore Pte Ltd v Quek Chin Thean [2011] 2 SLR 541 (refd)

C plc v P [2007] Ch 1 (refd)

Chan Fook Kee v Chan Siew Fong [2001] 2 SLR(R) 143; [2001] 3 SLR 176 (refd)

Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818 (refd)

Crest Homes plc v Marks [1987] AC 829 (folld)

Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) [2020] FCA 64 (refd)

Doucette v Wee Watch Day Care Systems Inc [2005] BCJ No 589 (refd)

Doucette v Wee Watch Day Care Systems Inc [2006] BCJ No 1176 (refd)

ECU Group plc, The v HSBC Bank plc [2018] EWHC 3045 (Comm) (refd)

ED&F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd [2020] SGCA 64 (refd)

Expanded Metal Manufacturing Pte Ltd v Expanded Metal Co Ltd [1995] 1 SLR(R) 57; [1995] 1 SLR 673 (refd)

Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR(R) 649; [1998] 1 SLR 374 (refd)

Hearne v Street (2008) 248 ALR 609 (refd)

JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2018] 2 SLR 159 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862; [1997] 3 SLR 489 (refd)

Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104; [2004] 3 All ER 648 (refd)

Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR(R) 465; [1999] 4 SLR 529, CA (refd)

Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR(R) 1017; [2000] 1 SLR 343, HC (refd)

Miller v Scorey [1996] 1 WLR 1122; [1996] 3 All ER 18 (refd)

Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 (refd)

NDT (BVI) Trading Ltd, Re [2009] HKCU 1593 (refd)

Nikkomann Co Pte Ltd v Yulean Trading Pte Ltd [1992] 2 SLR(R) 328; [1992] 2 SLR 980 (distd)

North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 (refd)

O Ltd v Z [2005] EWHC 238 (Ch) (refd)

Prime Finance Pty Ltd v Randall [2009] NSWSC 361 (refd)

Process Development Ltd v Hogg [1996] FSR 45 (refd)

Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 (not folld)

Reebok International Ltd v Royal Corp [1991] 2 SLR(R) 688; [1992] 2 SLR 136 (refd)

R v Special Commissioner of Income Tax [2003] 1 AC 563 (refd)

Riddick v Thames Board Mills Ltd [1977] QB 881 (refd)

Secretary for Justice v Florence Tsang Chiu Wing [2014] 6 HKC 285 (refd)

Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR(R) 367; [2007] 2 SLR 367 (refd)

Smith v Jones [1999] 1 SCR 455 (refd)

Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310 (refd)

Suzette F Juman v Jade Kathleen Ledenko Doucette [2008] 1 SCR 157 (refd)

Sybron Corp v Barclays Bank plc [1985] Ch 299 (refd)

TBD (Owen Holland) Ltd v Simons [2020] EWHC 30 (Ch) (refd)

Unicredit Bank Austria AG v Dragon Wise Trading Ltd [2013] HKCU 331 (refd)

Vasiliy Golovnin, The [2008] 4 SLR(R) 994; [2008] 4 SLR 994 (refd)

Weirs v Weirs [2012] FMCAfam 247 (refd)

Legislation referred to

Computer Misuse Act (Cap 50A, 2007 Rev Ed) s 3(1)

Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed)

Evidence Act (Cap 97, 1997 Rev Ed) ss 128, 128(2)

Penal Code (Cap 224, 2008 Rev Ed) s 425

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) s 6(b)

Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (1990) (HK) Art 35

Civil Procedure — Anton Piller orders — Riddick undertaking — Test for release from Riddick undertaking

Civil Procedure — Anton Piller orders — Ambit of order

Facts

Amber Compounding Pharmacy Pte Ltd and Amber Laboratories Pte Ltd (collectively, “Amber”) commenced an action against Lim Suk Ling Priscilla and UrbanRx Compounding Pharmacy Pte Ltd (“UrbanRx”) (collectively, “the defendants”) claiming, inter alia, that the defendants had misappropriated Amber's confidential information and trade secrets for the purposes of benefitting UrbanRx's business.

In support of its claim, Amber applied for and obtained search orders against the defendants. More than 100,000 documents were seized by Amber pursuant to the search orders, wherein Amber had given 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 …”.

After the search orders were executed, the defendants applied to set aside the orders, arguing among others that the ambit of the search order was too wide. The Judge did not deal directly with the setting-aside application. Instead, on the back of solicitors' undertakings that the seized documents would not be released to any other parties, the Judge directed that the documents be returned to their rightful owners, pursuant to a “Listing Exercise”. Under the Listing Exercise, Amber was to employ search terms to determine the ownership of the documents, and documents which indubitably belonged to Amber or the defendants would be returned to their respective owners and deleted/destroyed by the other party. If the ownership of any of the documents was disputed, such disputed documents would be returned to the defendants' counsel only, and were not to be kept by Amber in any form.

While the Listing Exercise was underway, Amber apparently formed the view that certain documents (“the Documents”) were probative of criminal offences having been committed by the defendants. Sometime in the third quarter of 2018, Amber proceeded to make reports to various authorities, disclosing ten of the Documents or excerpts of them in the process, without prior leave of court.

After the reports were made, between January and February 2019, Amber's new solicitors continued to represent to the court and to the defendants' counsel that Amber's persistent failure to comply with the timelines set for the Listing Exercise was due to “the sheer number of documents involved”. Amber thus sought an extension of time to complete the Listing Exercise. On the premise of the defendants' agreement, on 8 February 2019, the Judge granted Amber an extension of time to comply with the terms of the Listing Exercise by April 2019.

While the extension of time was being sought, Amber took out an application ex parte, seeking leave to use the Documents for the purpose of making reports to the authorities. The leave application was served on the defendants on 12 February 2019, after the extension of time had been granted.

After hearing the parties, the Judge granted Amber leave to disclose 23 of the 32 Documents. Leave was denied for the release of the remaining nine Documents. Both the defendants and Amber appealed against the Judge's decision, with the defendants arguing that leave ought not to have been granted for any of the Documents, and Amber arguing that leave ought to have been granted for all of the Documents.

Held, allowing the defendants' appeal and dismissing Amber's appeal:

(1) One of the core principles which regulated the conduct of civil proceedings was that documents ordered to be disclosed were to be used only for the purposes of the civil proceedings from which the disclosure was made, and not for any collateral purpose save with express leave of court (“the Riddick undertaking”): at [1].

The balancing of interests approach

(2) The weight of the authorities in the Commonwealth demonstrated that, in determining whether a party ought to be released from its Riddick undertaking, a balancing of interests test was to be adopted: at [45].

(3) Under the balancing of interests approach, the court would engage in a multifactorial balancing exercise, and leave would be granted if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweighed the interests that were protected by the Riddick undertaking. Factors such as injustice (or lack thereof) to the disclosing party and the privileges which could be asserted, were relevant factors, with the appropriate weight dependent on the specific circumstances of each case: at [46] to [47] and [69].

(4) The following were non-exhaustive factors in favour of lifting the Riddick undertaking: (a) countervailing legislative policy; (b) support of related proceedings; (c) investigation and prosecution of criminal offence(s); (d) public safety concerns; and (e) international comity: at [71].

(5) The...

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