PT Makindo (formerly known as PT Makindo TBK) v Aperchance Co Ltd and others

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 05 August 2010
• Neutral Citation: [2010] SGHC 221
• Citation: [2010] SGHC 221
• Docket Number: Originating Summons No 190 of 2010 (Summons No 1001 of 2010/F)
• Date: 05 August 2010
• Hearing Date: 24 May 2010,19 March 2010
• Plaintiff Counsel: Chandra Mohan / Mabelle Tay (Rajah & Tann LLP)
• Year: 2010
• Defendant Counsel: Davinder Singh SC / Cheryl Tay / Alecia Quah (Drew & Napier LLC)
• Court: High Court (Singapore)
• Published date: 18 May 2011

Tan Lee Meng J:

The present dispute between the parties arose as a result of misleading advertisements placed by both parties in Indonesian newspapers with respect to orders made by the Singapore High Court more than six years ago in February 2004. The applicant, PT Makindo, an Indonesian investment bank, applied for an order that the 1st respondent, Aperchance Co Ltd, a Hong Kong company, be fined for contempt of court. It also sought an order that the 2nd respondent, Mr Otto Rodusek, and the 3rd respondent, Mr Toh Keng Siong, who are the 1st respondent’s only directors be fined or committed to prison for aiding the said contempt.

Background

On 22 November 2003, the 1st respondent commenced Suit No 1149 of 2003/H (“Suit 1149”) against the applicant and three other defendants for, inter alia, the repayment of approximately US$126m. The three other defendants in that action were the applicant’s officers, Rachmiwaty Jusuf, Gunawan Jusuf and Claudine Jusuf (collectively referred to as the “Jusuf defendants”).

On 24 November 2003, pursuant to an ex parte application, the 1st respondent obtained a worldwide Mareva injunction against the applicant and the Jusuf defendants (the “Mareva injunction”).

On 23 December 2003, the Jusuf defendants filed two applications. The first application, Summons No 7795 of 2003/Q, was to set aside the Mareva injunction. In the second application, Summons No 7802 of 2003/K, the Jusuf defendants sought the following: (i) a declaration that the Writ of Summons had not been duly served on the applicant and the Jusuf defendants or, if it had been purportedly served, an order that the purported service be set aside; (ii) an order that paragraph 7 of the Order of Court dated 24 November 2003 granting leave to the 1st respondent to serve the Writ of Summons on the applicant and the 2nd and 3rd defendants in Suit 1149 out of jurisdiction be discharged and/or set aside; and (iii) a declaration that in the circumstances of the case, the Singapore Courts had no jurisdiction over the applicant and the 2nd and 3rd defendants in respect of the subject matter of the claim.

The two Summons filed by the Jusuf defendants were heard by Lai Kew Chai J (“Lai J”) in February 2004. On 27 February 2004, the Mareva injunction and the order for service of the Writ were set aside by Lai J on the ground that the Court had no jurisdiction over the defendants. Lai J, who did not consider the merits of the case, ordered the 1st respondent to pay costs to the defendants.

The 1st respondent did not appeal against Lai J’s decision. On 3 September 2004, the costs were taxed and the 1st respondent was ordered to pay costs of $122,557.48 to the Jusuf defendants.

Advised by its Singapore counsel that Lai J’s orders did not affect its right to pursue its claim in Indonesia, the 1st respondent instructed its Indonesian lawyers, M/s Lucas SH & Partners, to make representations to various Indonesian government agencies with respect to the said claim. The 3rd respondent said that on 11 April 2008, he was informed that the applicant’s representatives had been called for an interview by the authorities. Hence, the respondents asserted that the applicant and the Jusuf defendants were clearly aware that the 1st respondent intended to pursue its claim for the recovery from them of its monies in Indonesia.

According to the respondents, the applicant and the Jusuf defendants embarked on a scheme to discredit, embarrass, intimidate and pressure the 1st respondent into dropping its claim against them and that this plan involved the starting of a media war against the 1st respondent to prejudice it in the eyes of the relevant Indonesian authorities. Whether or not this accusation is true, the applicant published a number of misleading advertisements in Bahasa Indonesia in several Indonesian newspapers including Bisnis Indonesia, Kompas and Kontan in December 2009 and January 2010. The English translation of part of the applicant’s advertisements is as follows:

That on 21 November 2003, Aperchance Company Limited has filed a lawsuit to PT Makindo, Gunawan Jusuf, Rachmiwaty and Claudine in the Singapore High Court where as if Aperchance Company Limited has savings deposits in PT Makindo and based on the lawsuit from Aperchance Company Limited, proved after the trial in the Singapore High Court, then on February 27 2004 the Singapore High Court has dismissed the claim filed by Aperchance Company Limited to the entire party and on August 11 2004, the Singapore High Court ordered Aperchance Company Limited to pay compensation costs to PT Makindo, Gunawan Jusuf and Rachmiwaty in the amount of SGD 122,557.48 …. And it turned out that Aperchance Company Limited did not file any legal appeal to the Singapore High Court Verdict. So the Singapore High Court verdict becomes binding and has permanent legal force…….. Based on the above mentioned facts, then it is proven that Pt Makindo does not have obligation in any form to Aperchance Company Limited and on the contrary, Aperchance Company Limited has acknowledged its obligation to PT Makindo, Gunawan Jusuf and Rachmiwaty by paying the compensation costs.

[emphasis added]

The applicant’s claim in its advertisements that the 1st respondent’s claim in Suit 1149 had been dismissed by the Singapore courts following a trial in 2004 was clearly untrue as Lai J had only considered the issue of jurisdiction and not the merits of the case. As for the applicant’s claim that it no longer owed any obligation to repay the monies claimed in that suit to the 1st respondent, this was regarded as untrue by the respondents.

The 1st respondent retaliated by placing Bahasa Indonesia advertisements, mostly in the same Indonesian newspapers that carried the applicant’s earlier advertisements, between 7 and 11 January 2010. The English translation of part of the 1st respondent’s advertisements is as follows:

IMPEDING AND BLOCKAGE. THE ENTIRE ASSETS/CAPITAL OF PT MAKINDO TBK, RACHMIWATY JUSUF, GUNAWAN JUSUF AND CLAUDINE JUSUF ALL OVER THE WORLD PURSUANT TO THE JUDGMENT OF THE SINGAPORE HIGH COURT NO S 1149/2003/H DATED 24th NOVEMBER 2003. IN THE CASE BETWEEN APERCHANCE COMPANY LIMITED (the “PLAINTIFF”) AGAINST PT MAKINDO TBK, RACHMIWATY JUSUF, GUNAWAN JUSUF AND CLAUDINE JUSUF (the “DEFENDANTS”).

Like the applicant’s advertisements, the 1st respondent’s advertisements were also misleading as the Mareva injunction in question had been discharged by Lai J on 27 February 2004.

The applicant, who had fired the first salvo in what the respondents termed as “the media war”, claimed that it was “shocked” by the 1st respondent’s advertisements. On 20 January 2010, the applicant’s lawyers, Rajah & Tann wrote to the 2nd respondent to state that the 1st respondent’s advertisements were calculated to cause serious harm and damage to their client, who would be seeking to “recover substantial damages and reliefs … against [the 1st respondent] and its directors.”

Subsequently, on 18 February 2010, the applicant filed Originating Summons No 190 of 2010/D (“OS 190”) on an ex parte basis for leave to make an application for an order of committal for contempt of court against the respondents. The applicant did not disclose its own earlier misleading advertisements to the court. The requisite leave was granted to the applicants on 2 March 2010 and the application was heard on 24 May 2010.

Whether the Respondents are liable for Contempt of Court

Section 7(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and O 52 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) give the High Court power to punish for contempt of court. The rationale for punishing such contempt has been explained on numerous occasions. In Attorney-General v Times Newspapers Ltd [1974] 1 AC 273, Lord Morris of Borth-y-Gest stated at 302:

In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted.

[emphasis added]

The views of Lord Morris were endorsed by the Singapore Court of Appeal in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 (“Pertamina”) at [22].

Contempt of court must be proven beyond reasonable doubt:...