Microsoft Corp and Others v SM Summit Holdings Ltd and another and other appeals

CourtCourt of Three Judges (Singapore)
JudgeChao Hick Tin JA
Judgment Date21 September 1999
Neutral Citation[1999] SGCA 72
Citation[1999] SGCA 72
Subject MatterNatural and ordinary meaning of alleged defamatory words,Defamation,Tort,O 14 r 12 Rules of Court,Determination of construction of documents,Admissibility of evidence,Whether any implied undertaking not to use such documents,Summary judgment,Whether full trial necessary,Whether prohibited by order of court made directing return of documents and copies seized under search warrants,Use of documents and information obtained via search warrants,Civil Procedure,Whether question suitable for determination when it will determine only an issue in the cause but not fully determine the entire cause,Evidence,Applicable principles for determining natural and ordinary meaning of alleged defamatory words,Whether extrinsic evidence admissible
Published date19 September 2003
Plaintiff CounselHarry Elias SC and Tan Chee Meng (Harry Elias Partnership),Davinder Singh SC, Engelin Teh SC and Hri Kumar (instructed) with Manjit Singh (Manjit Samuel & Partners),VK Rajah SC and Lionel Tan (Rajah & Tann)
Date21 September 1999
Docket NumberCivil Appeals Nos 37, 38 and 39 of 1999

(delivering the judgment of the court): There are three appeals before us. The first two appeals, CA 37 and 38/99, are against the decision of the High Court determining the meaning of the words complained of in the defamation action, Suit 1323/98. The third appeal, CA 39/99, is against the decision overruling a preliminary objection to the use of documents and information obtained in a raid carried out at certain premises pursuant to three search warrants. CA 37 and 38/99 were heard together as they both raised the same point in issue, and CA 39/99 raised a different point and was heard separately. We set out first the background facts, which are not disputed.


In the action, Suit 1323/98, the plaintiffs are Summit Holdings Ltd, a public company, and were at the material time listed on the SESDAQ Board. They are currently listed on the Main Board of the Stock Exchange of Singapore Ltd. The second plaintiffs are Summit CD Manufacture Pte Ltd, a wholly owned subsidiary of the first plaintiffs and are engaged in the business of, inter alia, manufacture of CDs and CD-ROMs. Their business operations are carried out at the premises of the first plaintiffs at 45 Ubi Road 1, Singapore 408696. For convenience, we shall continue to refer to both of them in this judgment as `the plaintiffs`.

There are altogether seven defendants in the action, and we shall continue to refer to them as `the defendants`. The first, second and third defendants, Microsoft Corp (`Microsoft`), Adobe Systems Incorp (`Adobe`) and Autodesk Incorp (`Autodesk`) respectively are companies incorporated in the United States of America and are engaged in the business of, inter alia, publishing and distributing computer software. The fourth defendant, Business Software Alliance (`BSA`), is a software anti-piracy watchdog body of which Microsoft, Adope and Autodesk are members. The fifth defendant, Stuart Ong, is the legal counsel of Autodesk in the Asia Pacific region and a vice-president of BSA. The sixth defendant, Lee Cross, is the vice-president and the managing director for the Asia Pacific region and the regional counsel of BSA. The seventh defendant, Ronald T Eckstrom, is a corporate attorney of Microsoft and a vice president of BSA.

On 8 August 1997, representatives of BSA made a complaint before a magistrate of alleged copyright and trademark infringements by the plaintiffs and applied for two search warrants to enter and search the plaintiffs` premises. The magistrate granted the two warrants, the first pursuant to s 62(a) of the Criminal Procedure Code (Cap 68) for the alleged infringement of trade marks (`the trade marks warrant`) and the second pursuant to s 136(9) of the Copyright Act (Cap 63, 1988 Ed) for the alleged infringement of copyright (`the copyright warrant`). On 12 August 1997, armed with these warrants, the representatives of BSA, police officers and solicitors from the law firm representing BSA carried out a raid on the plaintiffs` premises. As the first two search warrants did not permit a seizure of documents, BSA applied for and obtained, later the same night, a third search warrant but this time from a High Court judge.

The plaintiffs subsequently applied by way of criminal revision to quash all the three search warrants in Crim Rev 15/97. Almost simultaneously, BSA applied by way of a motion in CM 17/97 for an order permitting their solicitors to make copies of documents and an order requiring the plaintiffs to produce and deliver further documents. Both the matters came on for hearing before Yong Pung How CJ. At the conclusion of the hearing on 29 September 1997, the learned Chief Justice upheld the two search warrants granted by the magistrate but quashed the third search warrant granted by the judge on the ground, inter alia, that a High Court judge had no jurisdiction to sit as a magistrate or to make orders as a magistrate. The learned Chief Justice ordered the documents seized pursuant to the first two search warrants as well as all the items seized pursuant to the third search warrant to be returned to the plaintiffs. The criminal motion filed by BSA was dismissed. The grounds of judgment were delivered on 13 October 1998: SM Summit Holdings Ltd & Anor v PP and another action [1997] 3 SLR 922 .

Subsequently, BSA failed to return certain documents to the plaintiffs, and as a result the latter applied by way of a motion in CM 21/98 to commit BSA for contempt. At the conclusion of the hearing of the motion on 11 May 1999, the learned Chief Justice found that there was a failure on the part of BSA to comply fully with the terms of his order and accordingly held that BSA was guilty of contempt and fined BSA a sum of $5,000. The learned Chief Justice delivered his grounds of judgment on 31 May 1999: Summit Holdings Ltd & Anor v Business Software Alliance [1999] 3 SLR 1997 .

We now come to the subject-matter of these proceedings, and in this connection we have to back track to an important event which took place on 13 August 1997, immediately after the completion of the raid on the plaintiffs` premises. On that day, the defendants held a press conference and published or caused to be published to persons present thereat a press release (`the press release`). The title of the press release had a prominent heading: `SM Summit Holdings targeted in BSA enforcement action.` Immediately below the title were two important lines of catchwords:

[bull ] The prominent Singapore-listed company is believed to be a major player in the counterfeit software industry.

[bull ] FAS Disc Manufacturing Pte Ltd also faces civil actions for selling counterfeit software.

The contents of the press release, in so far as material, are reproduced below, and for ease of reference, we have numbered the paragraphs:

(1) Singapore - Wednesday 13 August 1997 - The pirate CD ROM industry could come to a grinding halt in Southeast Asia following a significant raid on the CD ROM manufacturing operations of Singapore-listed SM Summit Holdings.

(2) Summit CD Manufacture Pte Ltd, one of the biggest manufacturers and suppliers of CD ROMS in Singapore, became the target of comprehensive investigations conducted by the Business Software Alliance (BSA) and Microsoft, following tip-offs that the company was involved in the illegal software piracy trade.

(3) The raid was conducted yesterday at midday with the assistance of a 26 strong team accompanied by the Commercial Investigation Department of the Singapore Police, together with investigation representatives from the Business Software Alliance (BSA). The raid team, comprising industry experts pulled in from the US, Australia, and Hong Kong by the BSA member companies, seized documentary evidence from the Summit Building, located at 45 Ubi Road 1, Singapore.

(4) Lee Cross, Regional Counsel of BSA asserted, `The BSA is totally committed to eradicating software piracy and protecting our members` intellectual property rights from being stolen by others.`

(5) The software industry has had warning that we were moving in this direction,` says Stuart Ong, Legal Counsel for Autodesk ... As a result of this recent enforcement action we hope that the software industry in the region recognise the legal risks involved in the illegal software trade,` he said.

(6) ...

(7) SM Summit Holdings, listed on Singapore`s SESDAQ counter reported a 70 per cent share of the Singapore market in its May 1997 financial report and in recent years has built similar manufacturing operations in Malaysia, Australia and Hong Kong.

(8) The raid against Summit follows an investigation against another Singapore manufacturer, FAS Disc Manufacturing (S) Pte Ltd, following the purchase by BSA Investigators of 10,000 illegitimately produced CD ROMs.

(9) Acting on behalf of its members: Adobe, Autodesk and Microsoft, the BSA has commenced a civil action against both FAS Disc Manufacturing (S) Pte Ltd, and Summit CD Manufacture Pte Ltd jointly with SM Summit Holdings Limited.

SM Summit Holdings Limited and Summit CD Manufacture Pte Ltd

(10) The raid against SM Summit followed the issuing of warrants to search and seize evidence of infringement, in particular the records of manufacturing and sale of suspected counterfeit CD ROMs at the premises of Summit at 45 Ubi Road, Summit Building.

(11) The investigation against Summit began following tip-offs resulting from a TCS Talking Point (a Singapore television programme) interview with Ron Eckstrom, where he expressed concern regarding the increasing trade in software piracy in Singapore.

(12) Microsoft worked with informants and successfully secured concrete evidence against Summit revealing the names of customers and their orders in relation to stampers for suspected counterfeit CD ROMs.

(13) BSA`s investigators also acquired eight `stampers`, used for the replication of CD ROMs, during their investigation. All eight stampers were manufactured by Summit and of the five stampers analysed, all are believed to contain counterfeit software products and compilations of infringing programmes of BSA member software. Each stamper can be used to replicate tens of thousands of CD ROMs.

About a year later, on 5 August 1998, the plaintiffs instituted this action for defamation against the defendants for having published or having caused to be published the press release which the plaintiffs averred contained defamatory words of and concerning them. The plaintiffs pleaded in para 11 of the statement of claim as follows:

The words in their natural and ordinary meaning meant and were intended to mean that the plaintiffs are guilty of criminal conduct, namely, the systematic manufacturing of, and trading in, counterfeit CD ROMs, on such an extensive scale that they are responsible for the pirate CD ROM trade in Southeast Asia.

Soon after the commencement of the action, on 18 August 1998, the plaintiffs applied by way of SIC 6284/98 for...

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