Sembcorp Marine Ltd v Aurol Anthony Sabastian

• Jurisdiction: Singapore
• Judgment Date: 19 March 2012
• Date: 19 March 2012
• Docket Number: Originating Summons No 465 of 2011 (Summons No 2861 of 2011)
• Court: High Court (Singapore)

Sembcorp Marine Ltd

Plaintiff

and

Aurol Anthony Sabastian

Defendant

[2012] SGHC 52

Quentin Loh J

Originating Summons No 465 of 2011 (Summons No 2861 of 2011)

High Court

Contempt of Court—Criminal contempt—Whether breach of interim sealing order by third party was enough for finding of criminal contempt

These proceedings arose out of a suit (‘the Main Suit’) involving the Applicant, Sembcorp Marine Pte Ltd (‘SCM’), and companies of which the Respondent, Mr Aurol, was a director. As part of the Main Suit, SCM filed an affidavit dated 26 November 2010 (‘4th Affidavit’) containing confidential information and policies. Concerned that the contents of this affidavit and the fact that SCM was concerned would be made public and used against them, SCM took out Summons No 5659 of 2010 (‘Summons 5659’) on 3 December 2010 to seal this 4th Affidavit. SCM filed an affidavit dated 3 December 2010 in support of the Summons (‘5th Supporting Affidavit’), and requested that the 5th Supporting Affidavit and the Summons itself also be sealed. An interim sealing order (‘the Sealing Order’) on 6 December 2010 sealed the Summons and 5th Supporting Affidavit, but not the 4th Affidavit, which was the subject matter to be decided when Summons 5659 was heard. Unfortunately the assistant registrar made a mistake in the Sealing Order stating that the ‘5^th supporting affidavit dated 26 November 2010, together with the summons, are to be sealed’. There was no ‘5^th supporting affidavit dated 26 November 2010’; there was a 4th Affidavit dated 26 November 2010 and a ‘5^th supporting affidavit’ which was dated 3 December 2010. Mr Aurol read the Summons, with the Sealing Order endorsed thereon and the 5th Supporting Affidavit. Pursuant to a telephone conversation on 9 December 2010 with his good friend, Mr Conrad Jayaraj, a journalist with the Today Newspaper, and who had previously written an article on the Main Suit, Mr Aurol then forwarded the Summons, with the Sealing Order endorsed thereon, and the 5th Supporting Affidavit to Mr Jayaraj. Mr Jayaraj proceeded to publish an article on 13 December 2010 in the TODAY newspaper about SCM and the Main Suit in not very flattering terms, referred to the Summons and contained quotes from the 5th Supporting Affidavit which referred to the confidential policies. On 14 December 2010 SCM requested Mediacorp to reveal its source for the article but Mediacorp refused to do so. SCM sued Mediacorp on 27 January 2011 and obtained an order on 7 March 2011 from an assistant registrar ordering Mediacorp to disclose its source. Mediacorp appealed but on 31 March 2011 a High Court Judge upheld the assistant registrar's order. Mediacorp published an article on 2 April 2011 stating that it was prepared to reveal its source. Mr Aurol then revealed himself as the source of the information for the 13 December 2010 article in the TODAY newspaper. SCM applied to have Mr Aurol committed for contempt of court under O 52 Rules of Court for disclosing the Summons and the 5th Supporting Affidavit to Mr Jayaraj. Mr Aurol apologised and claimed that he had made a mistake reading the Order, which was ambiguous in relation to the sealing of the supporting affidavit. He also claimed that the court cannot refer to the letter sent by the Applicant's lawyers on 6 December 2010 (‘the 6 December letter’), which made clear which affidavit was sealed, as this was extraneous evidence.

Held, granting the application:

(1) The court's power to punish for contempt does not exist to vindicate the dignity of the court or the self-esteem of judges. It is to prevent interference with and to safeguard public confidence in the administration of justice: at [27].

(2) The utility of the traditional classification into civil and criminal contempt, whilst serving its purpose in the past, is of questionable utility today and tends to mislead. It should be classified into two broad categories, contempt by interference and contempt by disobedience: following You Xin v PP[2007] 4 SLR (R) 17: at [28] to [30] and [32].

(3) The subversion of an order of court constitutes a direct threat to the administration of justice because it has the effect of nullifying the purpose of the order or rendering subsequent proceedings for which the order was made otiose or academic or taking away the decision-making power of the court. The burden of proof is high, viz,proof beyond a reasonable doubt: at [33] and [34].

(4) The real issue is whether the Applicant has proved, beyond a reasonable doubt, that the Respondent had the requisite intention to first commit an act in disregard of the order of court and which would interfere with the proper administration of justice, and secondly that the act or acts in question carried a real risk that the proper administration of justice would be interfered with: at [34].

(5) Although Mr Aurol was technically not a party to the Main Action, he could still be held liable in contempt if he knowingly assists a breach on the part of a named party or even if he acted alone: Pertamina Energy Trading Ltd v Karaha Bodas Co LLC[2007] 2 SLR (R) 518, Attorney-General v Times Newspapers Ltd[1992] 1 AC 191 and Attorney-General v Punch Ltd[2003] 1 AC 1046 followed: at [38] and [39].

(6) On the facts of the case, there was the requisite mens rea of intention to commit such interference: at [56] to [77].

(7) Mr Aurol breached the terms of the Sealing Order in relation to Summons 5659 and the 5th Supporting Affidavit. This was a substantial interference with the administration of justice and not a mere technical breach. It was clear on its face that the purpose of the Order was to protect and preserve the confidentiality of the documents until the High Court could decide the issue of whether non-parties should be prevented from reading or accessing the information contained in the 4th Affidavit, the 5th Supporting Affidavit and the Summons. The disclosure of both the Summons and the 5th Supporting Affidavit thwarted this very purpose, as there would be no point in sealing what had already been made public: at [54] and [79] to [87].

(8) There was no ambiguity in relation to the sealing of the Summons, and Mr Aurol's confusion about which affidavit was being referred to did not apply to the Summons. Mr Aurol's unsubstantiated excuse that he did not realise it had been sealed was unacceptable: at [41] to [43].

(9) Any ambiguity in relation to the sealing of the 5th Supporting Affidavit was dispelled by the 6 December letter, which Mr Aurol accepted he had read sometime between the 6 and 9 December 2010 before he sent the Summons, with the Sealing Order endorsed thereon and the 5th Supporting Affidavit to Mr Jayaraj on 9 December 2010. Mr Aurol's purported explanation with a bald statement that the said letter was ‘not within [his] contemplation’ when he spoke to Mr Jayaraj on 9 December 2010 was also unacceptable. The court was entitled to consider this letter, as it is not extraneous evidence used to remedy an unclear or subjective order, and is therefore distinguishable from Attorney-General v Punch[2003] 1 AC 1046: at [46] to [55].

(10) Mr Aurol's failure to explain how and when he read the 6 December letter, his unexplained deletion of the e-mail he sent to Mr Jayaraj, his refusal to come forward until the last hour, and his evasive apology justified drawing an adverse inference against him. Just as circumstantial evidence can prove guilt beyond reasonable doubt, so can surrounding facts and circumstances establish guilt beyond a reasonable doubt in contempt proceedings. SCM has proved beyond a reasonable doubt a substantial interference with the decision-making power of the court and therefore with the due administration of justice. The threefold purpose of the interim sealing order was clear, and this purpose was irreversibly thwarted once Mr Jayaraj published his article in the TODAY newspaper article; Mr Aurol's breach was cynical, deliberate and calculated, and usurped the court's power of determination of the issue: at [55], [57] to [77] and [84] to [87].

AG v Newspaper Publishing plc [1997] 1 WLR 926 (distd)

AG v Newspaper Publishing plc [1988] Ch 333 (refd)

AG v Punch Ltd [2003] 1 AC 1046 (distd)

AG v Times Newspapers Ltd [1974] AC 273 (refd)

AG v Times Newspapers Ltd [1992] 1 AC 191 (refd)

Chang Benety v Tang Kin Fei [2012] 1 SLR 274 (refd)

Her Majesty's AG v Michael John Pelling [2005] EWHC 414 (Admin) (distd)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR (R) 518; [2007] 2 SLR 518 (folld)

Tang Kin Fei v Chang Benety [2011] 1 SLR 568 (refd)

You Xin v PP [2007] 4 SLR (R) 17; [2007] 4 SLR 17 (refd)

Z Ltd v A-Z and AA-LL [1982] QB 558 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 52

Contempt of Court Act 1981 (c 49) (UK) s 7

Davinder Singh SC, Pardeep Singh Khosa and Vishal Harnal (Drew & Napier LLC) for the applicant

George Lim SC and Foo Say Tun (Wee, Tay & Lim LLP) for the respondent.

Judgment reserved.

Quentin Loh J

Introduction

1 The applicant, Sembcorp Marine Ltd (‘SCM’), seeks an order for committal of the respondent, Anthony Sabastian Aurol (‘Mr Aurol’), for contempt of court pursuant to O 52 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), alleging a deliberate breach of an interim sealing order of two documents: (a)a Summons in Chambers applying for a sealing order; and (b)the fifth affidavit of Mr Wong Weng San (‘Wong's 5th Affidavit’) filed in support of the said summons.

2 On 3 December 2010, SCM filed Summons in Chambers No 5659 of 2010 (‘Summons 5659’) in Suit No 351 of 2010 (‘Suit 351’), applying for a sealing order in relation to Mr Wong Weng San's fourth affidavit (‘Wong's 4th Affidavit’), Summons 5659 itself, and Wong's 5th Affidavit. Three days later, on 6 December 2010, SCM orally applied for an interim order to seal the Summons itself and Wong's 5th Affidavit pending the hearing of Summons 5659. The assistant...