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

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 09 March 2000
• Neutral Citation: [2000] SGCA 12
• Date: 09 March 2000
• Subject Matter: Courts and Jurisdiction,"Original Criminal Jurisdiction",Criminal jurisdiction,Whether orders by High Court made in exercise of original criminal jurisdiction,Whether court has jurisdiction to hear appeals against orders by High Court in exercise of revisionary jurisdiction,Court of appeal,ss 29A, 44, 59, 60 Supreme Court of Judicature Act (Cap 322, 1999 Ed),Whether court has jurisdiction to hear appeals from such orders,ss 185, 241, 354, 376 Criminal Procedure Code (Cap 68),Words and Phrases
• Docket Number: Criminal Appeals Nos 25 and
• Published date: 25 February 2004
• Defendant Counsel: Engelin Teh SC and Thomas Sim (Engelin Teh & Partners) with Manjit Singh and Govin Menon (Manjit Samuel & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: VK Rajah SC and Lionel Tan (Rajah & Tann),Harry Elias SC and Tan Chee Meng (Harry Elias Partnership)

(delivering the judgment of the court): These two appeals arose from the decision of the High Court in CM 6 and 7/99 which were heard together. Criminal Motion 6 was taken out by Microsoft Corporation (`Microsoft`), Adobe Systems Inc (`Adobe`), Autodesk Inc (`Autodesk`) and Ronald Eckstrom (`Eckstrom`), and CM 7/99 by Business Software Alliance (`BSA`), Stuart Ong, and Lee Cross. The two criminal motions were identical in all material respects and sought the same orders. Both motions were heard before the learned Chief Justice and were dismissed, and against his decision these two appeals were filed respectively. Criminal Appeal 25/99 was filed by Microsoft, Adobe, Autodesk and Eckstrom and is against the dismissal of CM 6/99, and Crim App 26/99 was filed by BSA, Stuart Ong and Lee Cross and is against the dismissal of CM 7/99. The respondents in these two appeals are SM Summit Holdings (`Summit Holdings`) and Summit CD Manufacture Pte Ltd (`Summit CD`).

Background

Microsoft, Adobe and Autodesk are companies incorporated in the United States of America and are engaged in the business of, inter alia, publishing and distributing computer software. BSA is a software anti-piracy watchdog organization of which Microsoft, Adobe and Autodesk are members. Stuart Ong is the legal counsel of Autodesk in the Asia Pacific region and vice-president of BSA. Lee Cross is a vice-president and managing director of the Asia Pacific region and regional counsel of BSA. Eckstrom is a corporate attorney of Microsoft and vice president of BSA. We shall refer to these parties collectively as the appellants.

Summit Holdings is a public company and was, at the material time, listed on the SESDAQ Board of the then Stock Exchange of Singapore Ltd. It is currently listed on the Main Board of the Singapore Exchange. Summit CD is a wholly owned subsidiary of Summit Holdings and is engaged in the business of, inter alia, manufacture of CDs and CD-ROMs. We shall refer to both of them jointly as the respondents.

The matter in dispute before us had its origin in 1997 and arose in the following manner. On 8 August 1997, BSA applied for and were granted two search warrants before a magistrate to search the premises of Summit Holdings for alleged copyright and trademark offences. Armed with the search warrants, the representatives of BSA, police officers and also lawyers from the law firm representing BSA, on 12 August 1997, carried out a raid on the premises. As the first two search warrants did not permit a seizure of documents, BSA applied for and were granted, on the same night, a third search warrant by GP Selvam J. Pursuant to these warrants, the raiding party seized and took away various documents from the premises of the respondents and five CD-ROMs alleged to contain copyright infringing programmes, stamper and two glass masters alleged to be used for the purposes of replicating CD-ROMs. The documents included internal memoranda of the staff, minutes and notes of meetings, invoices, sale orders and a log book. A list recording some of the customers of the respondents was allegedly downloaded from the computer system of the respondents and was seized and taken away also.

Immediately following the raid, on 13 August 1997, the appellants held a press conference at the premises of Summit Holdings and published or caused to be published to persons present thereat a press release. This press release later became the subject of proceedings in Suit 1323/98, to which we shall return in a moment.

The respondents being aggrieved by the raid carried out by the appellants instituted proceedings in CR 15/97 seeking an order to quash all the search warrants. BSA, for their part, applied by way of CM 17/97 for permission to make copies of documents and for an order that the respondents deliver up (i) copies of certain invoices issued to Category `C` customers who, the appellants alleged, were well known pirates, (ii) copies of warranties, indemnities signed by such customers, and (iii) a copy of each CD-ROM produced for such customers. Both the criminal revision and the criminal motion came on for hearing before the learned Chief Justice. On 29 September 1997, the learned Chief Justice made the following orders in respect of the criminal revision. He directed that the two warrants issued by the magistrate should stand but he quashed the third warrant issued by GP Selvam J on the ground, inter alia, that a High Court judge has no jurisdiction to sit as a magistrate or to make any order as a magistrate. Further, he ordered that all the documents and items seized pursuant to the third warrant and the documents and items seized outside the scope of the first two warrants be returned. The CM 17/97 taken out by BSA was dismissed. The grounds of his judgment were handed down on 13 October 1997: SM Summit Holdings Ltd & Anor v PP and another action [1997] 3 SLR 922 .

We now return to the Suit 1323/98. It was commenced by the respondents on 5 August 1998, which was about a year after the publication of the press release. In this suit, the respondents claim that certain words of the press release published or caused to be published at the press conference on 13 August 1997 defamed them, and attributed to the words complained of the meaning that the respondents were guilty of criminal conduct, namely, the systematic manufacturing of, and trading in, counterfeit CD-ROMs on such an extensive scale that they were responsible for the pirate CD-ROM trade in Southeast Asia. Soon after the commencement of the action, the respondents applied, inter alia, for (a) an order under O 14 r 12 of the Rules of Court determining the meaning of the words complained of as pleaded in the statement of claim, and (b) summary judgment under O 14 r 3. Prior to the hearing of the application, the appellants filed their joint defence in which they denied that the press release bore the meaning which the respondents had pleaded. More importantly, they pleaded justification and/or fair comment of the meaning which they said the passages complained of bore.

The application came on for hearing before an assistant registrar. At that hearing, a preliminary objection was raised by counsel for the respondents as to the references, in the joint defence and in the affidavits filed in opposition to the application, to documents and information obtained by the appellants pursuant to the search warrants, on the following grounds:

(a) that there was an implied undertaking on the part of the appellants not to use such documents or information obtained in criminal proceedings in unconnected civil proceedings, as the information was confidential information on which the appellants could not rely without leave of court; and

(b) even if there was no implied undertaking, it followed from the order made on 29 September 1997 directing that all documents and copies seized in the raid be returned to the respondents that the use of such documents and copies and information derived therefrom was impermissible.

The assistant registrar overruled the preliminary objection and held that the information obtained as a result of the raid and referred to in the joint defence and affidavits was admissible and should be allowed to stand. She then proceeded to consider the natural and ordinary meaning of the words complained of and came to the conclusion that the natural and ordinary meaning of the words was that the respondents were guilty of criminal conduct, namely, the systematic manufacture of and trading in counterfeit CD-ROMs on such an extensive scale that they were responsible for the pirate trade in Southeast Asia. Having dealt with these two issues, the assistant registrar granted leave to the appellants to amend the defence and adjourned the hearing to a later date. At the subsequent hearing the appellants tendered a proposed amended defence. At the end of the hearing, the assistant registrar granted the appellants unconditional leave to defend the action.

The respondents appealed to a judge-in-chambers against that part of the decision which allowed the appellants to use the documents and information obtained as a result of the raid. The appellants, for their part, appealed against the other part of the decision of the assistant registrar which determined the meaning of the words complained of. Both appeals were heard by Amarjeet Singh JC who upheld all the orders made by the assistant registrar. The parties then further appealed to the Court of Appeal. The respondents appealed in CA 39/99 against that part of the decision overruling the preliminary objection as to the use of the documents and information. The appellants, for their part, appealed against the other part of the decision which determined the natural and ordinary meaning of the words complained of. In that respect, two appeals were filed: CA 37/99 was taken out by Microsoft, Adobe and Autodesk and Eckstrom, and CA 38/99 was taken out by BSA, Stuart Ong and Lee...