Microsoft Corporation and Others v SM Summit Holdings Ltd and Another (No 2)

• Jurisdiction: Singapore
• Judgment Date: 27 November 1999
• Date: 27 November 1999
• Docket Number: Criminal Motions Nos 6 and 7 of 1999
• Court: High Court (Singapore)

Microsoft Corp and others

Plaintiff

and

SM Summit Holdings Ltd and another

Defendant

[1999] SGHC 309

Yong Pung How CJ

Criminal Motions Nos 6 and 7 of 1999

High Court

Criminal Procedure and Sentencing–Judgment–Alteration–Release from or variation of implied undertaking–Pending applicants from using documents and information illegitimately obtained–Whether applicants could use prohibited documents and information for defence in libel action–Whether variation of order in overall interest of justice–Grant of application only in very exceptional circumstances–Criminal Procedure and Sentencing–Judgment–Variation of court order–Release from or variation of implied undertaking–Locus standi of applicants to apply for variation–Jurisdiction of High Court to consider application

The applicants of the two criminal motions were the defendants in a libel action. The object of the applications was to gain access to certain documents and information belonging to the respondents (the plaintiffs in the libel suit) for use in the libel action.

The relevant documents and information had been obtained in a raid at the respondents' premises pursuant to three search warrants. The respondents subsequently brought Criminal Revision No 15 of 1997 to quash all the search warrants. The two warrants issued by the magistrate were upheld but the third warrant issued by the High Court judge was quashed and all the items seized pursuant to the third warrant and the items seized outside the scope of the first two warrants were ordered to be returned to the respondents.

In the meantime, the applicants had, immediately after the raid on the respondents' premises, held a press conference and published a press release. The respondents complained that the press release was defamatory of them and subsequently instituted action against the applicants. After the commencement of the action, the respondents applied for summary judgment.

At the summary judgment hearing before an assistant registrar, counsel for the respondents raised a preliminary objection to certain references, in the defence and in the affidavits filed, to documents and information obtained by the applicants pursuant to the search warrants. The objection was on the grounds that: (a) there was an implied undertaking by the applicants not to use such documents or information obtained in the criminal proceedings in unconnected civil proceedings; and (b) even if there was no implied undertaking, it followed, from the order directing that all documents and copies seized in the raid be returned to the respondents, that the use of such documents and information derived therefrom was impermissible.

The assistant registrar overruled the preliminary objection and the order was upheld by the judicial commissioner. On appeal, the Court of Appeal reversed the decision below and upheld the preliminary objection. It held that the earlier orders prohibited the use of all documents and copies obtained pursuant to the search warrants and information extracted from such documents or copies. However, it was open to the applicants to apply to the High Court to vary the order to permit them to make use of the documents in the defamation action. It was further held by the Court of Appeal that aside from the order, there was an implied undertaking which precluded the use of documents seized in criminal proceedings for a collateral purpose, viz in civil proceedings, but that the implied undertaking was not absolute and could be varied in an appropriate case.

Pursuant to the Court of Appeal's observation that the applicants could apply for a variation of the order of court or for a release of the implied undertaking, the applicants took out the present two criminal motions.

Held, dismissing the applications:

(1) The applicants had the locus standi to make the applications to court for the restriction to be lifted. The applicants were not permitted to use in the defamation proceedings the prohibited documents and information derived without first obtaining the leave of court. They were parties directly affected by the restriction and they had a direct personal interest in seeking relief to vary the order of court and/or to be released from the implied undertaking: at [18].

(2) The High Court had jurisdiction to determine whether the court order could be varied as well as whether the implied undertaking given to the court as regards the use of the prohibited documents should be released or varied. In certain cases, circumstances occurring since the judgment might warrant the making of a supplemental order. In the present case, it was neither a review of the court's earlier decision nor a de novo hearing on matters decided in the criminal revision. The application was to vary the decision on the basis of new circumstances that had arisen since the decision, viz the defamation suit that was brought one year after the decision was made: at [21].

(3) The burden was on the applicants to establish cogent and persuasive reasons for variation of the court's order. A very important consideration in such an action was the overall interest of justice: at [25].

(4) In considering public interest, it was necessary to bear in mind the purposes of an order of court. In this case, one purpose would be to protect the privacy and confidentiality of the documents and information. Such a purpose would be undermined if the applicants were permitted to use the documents and information derived therefrom in their defence in the defamation suit: at [28].

(5) The court would exercise its discretion in favour of an application for variation of the order of court prohibiting the use of documents only in very exceptional circumstances. This was especially so in the case where a defendant raised justification and/or fair comment as a defence in a defamation action. In a libel action, a defendant was generally confined to the particulars of justification and was not permitted to fish for documents in the hope that something would be uncovered. Instead, he should be held to the materials that he had at the time the libel was published or caused to be published: at [31].

(6) Whilst it would be a strong countervailing public interest to ensure that all relevant evidence required in support of the claim was before the court in the civil proceedings, it was not a sufficient reason to tilt the balance in the applicants' favour. On the facts, the applicants had not demonstrated that the protection of the individual's privacy and the confidentiality of the document should be outweighed by allowing them to use the documents: at [35].

(7) At the close of the pleadings, the applicants would be entitled to discovery which might well give them the very documents in the possession, custody or power of the respondents. No reason was advanced as to why the applicants should be exempted from going through the ordinary discovery procedure. In the circumstances, the balance of the interest of justice was not in the applicants' favour: at [38] and [42].

(8) For the same reasons, the application for a release of the implied undertaking, independently of the variation of the order of court, also failed. The considerations for a variation or release of the implied undertaking were largely the same as those for the application for the variation of the order of court: at [45].

(9) The applicants had to succeed in both their applications for a variation of the order of court and the release of the implied undertaking before they could raise the argument that they should be allowed to retain the prohibited material contained in the cause papers and affidavits filed in the defamation suit. Since the applicants had failed in both their applications, it followed that they could not be permitted to retain such prohibited materials: at [51].

Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109; [1988] 3 All ER 545; [1988] 3 WLR 776 (refd)

Bright Impex v PP [1998] 2 SLR (R) 961; [1998] 3 SLR 405 (distd)

Coventry Newspapers Ltd, Ex parte [1993] QB 278 (distd)

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

Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 (refd)

Eckert v National Australia Bank [1997] SASC 6130 (refd)

Ford-Hunt v Raghbir Singh [1973] 1 WLR 738; [1973] 2 All ER 700 (refd)

Hawa bte Haji Mohamed Hussain v Miranda [1988] 2 SLR (R) 110; [1988] SLR 720 (distd)

Holpitt v Varimu Pty Ltd (1991) 103 ALR 684 (refd)

Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (distd)

Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 146; 157 ER 792 (refd)

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

Miller v Scorey [1996] 3 All ER 18 (refd)

Naf Naf SA v Dickens (London) [1993] FSR 424 (distd)

Oversea-Chinese Banking Corp v Wright Norman [1989] 1 SLR (R) 551; [1989] SLR 580 (refd)

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

SM Summit Holdings Ltd v PP [1997] 3 SLR (R) 138; [1997] 3 SLR 922 (refd)

Summit Holdings Ltd v Business Software Alliance [1999] 2 SLR (R) 592; [1999] 3 SLR 197 (refd)

Taylor v Director of the Serious Fraud Office [1999] 2 AC 177; [1998] 4 All ER 801; [1998] 3 WLR 1040 (refd)

Woodward v Hutchins [1977] 1 WLR 760 (refd)

Copyright Act (Cap 63,1988 Rev Ed)

Criminal Procedure Code (Cap 68,1985 Rev Ed)ss 262, 262 (1),266 (1), 336,336 (1)

Rules of Court (Cap 322,R 5, 1997 Rev Ed)O 14rr 12, 13

Trade Marks Act (Cap 332,1992 Rev Ed)

Police and Criminal Evidence Act1984 (c 60) (UK)

V K Rajah SC (Rajah & Tann) for the first, second, third and seventh applicants

Harry Elias SC and Tan Chee Meng (Harry Elias Partnership) for the fourth, fifth and sixth applicants

Engelin the SC with Manjit Singh and Govin Menon (Manjit Samuel & Partners) for the respondents.

Yong Pung How CJ

1 Criminal Motions Nos 6 and 7 of 1999 were two applications...