Privilege Against Self-Incrimination

Citation(1989) 1 SAcLJ 113
Date01 December 1989
AuthorTAN TEE JIM
Published date01 December 1989

Riedel-De Haen AG v Liew Keng Pang t/a Practical Instruments Corporation 1

Facts:

The plaintiff, Riedel-De Haen AG (Riedel-De), is in the business of researching, developing, producing, and marketing pharmaceutical and chemical products. It is the registered proprietor of the trademark RIEDEL-DE HAEN in Class 1 in respect of chemical products used in industry. The defendant, Liew Keng Pang (Liew), supplies chemical products to schools and educational institutions.

In April 1988, Riedel-De sued Liew for infringing and passing off the RIEDEL-DE HAEN trademark. On the same date, Riedel-De obtained, by way of an ex-parte application, an Anton Piller order compelling Liew to:

  1. • make and file an affidavit disclosing the names and addresses of all his suppliers and purchasers of goods which allegedly infringe Riedel-De’s trademark; and

  2. • confirm that the transactions so disclosed refer to goods “which are not the plaintiff’s manufacture or merchandise”.

Upon being served with the court order, Liew applied to have it discharged, relying on the privilege against self-incrimination.

Held:

The application was granted. The court held that the privilege against self-incrimination was part of Singapore law and that if Liew were compelled to disclose in terms of the court order, there would be a real and appreciable risk that his disclosures would incriminate, or tend to incriminate, him in respect of criminal offences under the Trade Marks Act and the Consumer Protection (Trade Description and Safety Requirements) Act.

The court took the view that the privilege against self-incrimination is not qualified or withdrawn by s.134 of the Evidence Act which states:

“A witness shall not be excused from answering any questions as to any matter relevant to the matter in issue in any suit …. upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind ….”

In the court’s opinion, the word “witness’ refers to a person who gives evidence in court during the hearing. It does not refer to a person who affirms an affidavit, either voluntarily or under compulsion, before the hearing.

Comment:

This decision follows the English House of Lords’ case of Rank Film Distributors Ltd v Video Information Centre2 which had upheld the claim of privilege against self-incrimination. Their Lordships’ reasoning is that disclosure of information and documents made pursuant to an Anton Filler order may set in train a process which may lead to incrimination or to discovery of real evidence of an incriminating character. Such being the case, the party from...

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