Sembcorp Marine Ltd v Aurol Anthony Sabastian

• Jurisdiction: Singapore
• Judgment Date: 28 September 2012
• Date: 28 September 2012
• Docket Number: Originating Summons No 465 of 2011 (Summons No 1622 of 2012)
• Court: High Court (Singapore)

Sembcorp Marine Ltd

Plaintiff

and

Aurol Anthony Sabastian

Defendant

[2012] SGHC 195

Quentin Loh J

Originating Summons No 465 of 2011 (Summons No 1622 of 2012)

High Court

Civil Procedure—Further evidence—Conviction for breach of sealing order by forwarding sealed documents to reporter—Request to adduce further evidence of reporter to whom sealed documents were forwarded—Whether further evidence should be allowed

Civil Procedure—Further evidence—Criminal contempt proceedings distinct from civil proceedings—Whether Ladd v Marshall conditions applied

Civil Procedure—Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)—Further argument—Request for further argument made in breach of Supreme Court Practice Directions—Whether further argument should be allowed—Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Contempt of Court—Criminal contempt—Conviction for breach of sealing order by forwarding sealed documents to reporter—What sentence should be given

Contempt of Court—Criminal contempt by breach of interim sealing order—Whether nature of interim sealing order different from non-disclosure order

These proceedings arose out of an earlier decision (‘the judgment’) convicting the respondent, Anthony Sabastian Aurol (‘Mr Aurol’) of criminal contempt for breach of an interim sealing order (‘the Sealing Order’) by forwarding two sealed documents (‘the sealed documents’) to Mr Conrad Jayaraj (‘Mr Raj’), a journalist from the TODAY Newspaper. After the judgment and before the hearing on sentence, Mr Aurol applied for (a)leave to adduce further evidence by calling Mr Raj to give evidence and be offered for cross-examination, and (b)leave to make further argument on a point of law, viz, that the Sealing Order was different from and was not a non-disclosure order. Counsel for Mr Aurol, in making the application for further arguments without identifying what the further argument was and without including any authorities, had not complied with the Supreme Court Practice Directions, paras 71 (e) and (f), which required a party to set out proposed further arguments briefly and cite the relevant authorities with copies enclosed. The conviction was confirmed on 11 May 2012 and parties were heard on sentence and mitigation.

Held, sentencing the respondent to five days in prison:

(1) A quasi-criminal case might permit some flexibility in applying the Ladd v Marshall[1954] 1 WLR 1489 conditions, but any departure from these conditions could only take place once they had been applied and where exceptional circumstances arose which excused some, but not all of these conditions: at [12].

(2) The potential hostility of a witness was not an acceptable excuse for non-fulfilment of the first condition (viz, that the evidence could not have been obtained with reasonable diligence for use at trial) when no effort at all was made to contact the witness, Mr Raj: at [15].

(3) The evidence that Mr Raj could have provided would not have had any influence on the result as it could not address essential findings of fact in the judgment as to Mr Aurol's intention to breach the Sealing Order when he forwarded the sealed documents to Mr Raj: at [18] and [19].

(4) The further evidence was contained in an unaffirmed draft affidavit which could not be relied on and contradicted an earlier unambiguous statement made by Mr Raj in a sworn affidavit. It was not apparently credible and none of the Ladd v Marshall conditions was met: at [26], [28] and [29].

(5) As non-compliance with the Supreme Court Practice Directions, paras 71 (e) and (f) could be cured without prejudice to the applicant in this case, further arguments should be allowed, where credible, in quasi-criminal cases: at [30].

(6) The court was not strictly confined to the express terms of the order when determining the purpose of the court in granting the order. The court was entitled in criminal contempt proceedings to consider the circumstances surrounding the grant of the order and its purpose. The argument that an interim sealing order had a limited purpose in preventing non-parties from inspecting sealed documents but did not prohibit disclosure or publication of the same ignored the circumstances under which the Sealing Order was made and confused the terms of the order with the purpose of the order: at [35] and [41].

(7) The broad purpose of the order was the same as a non-disclosure order: to maintain the confidentiality of information adduced as evidence in proceedings and to maintain the status quo until a court was able to decide the issue. The documents were clearly ‘sealed as against non-parties’ and targeted at preventing non-parties from having access to these documents, howsoever this access was obtained. The further argument was accordingly dismissed: at [38] and [46].

(8) A custodial sentence for criminal contempt might be justified in cases of a deliberate and persistent breach, an irreversible breach, repeated breaches, egregious behaviour and motive, where the contemnor was an officer of the court, or where the contemnor had procured others to break the law on his behalf. The guiding question was whether a fine was adequate to punish and deter contemptuous behaviour: at [57], [59], [60], [62], [66] and [67].

(9) Mr Aurol had deliberately and cynically breached the Sealing Order. He flagrantly disregarded the law with a calculated and egregious act, intending to entice (and therefore to procure) Mr Raj to publish an article based on the sealed documents: at [70], [72], [78], [81] and [84].

(10) Mr Aurol had no pecuniary motive and a fine may not be sufficient or proportional punishment. Something stronger would also be required to register the seriousness of the breach for general deterrence purposes: at [73] and [74].

(11) This was a particularly serious breach robbing any future court order of practical effect, notwithstanding that there was no evidence of pecuniary loss occasioned to the applicant: at [75] and [76].

(12) There were few mitigating factors as Mr Aurol understood the implications of his act and when faced with the consequences, gave a deliberately obfuscating apology that belied any potential remorse. In the circumstances, a custodial sentence was appropriate: at [77], [83] and [85].

(13) Given that Mr Aurol was not an officer of the court and his actions did not reach the level of seriousness as a continuing breach planned over a number of months or years, a lengthy custodial sentence was not necessary or desirable to achieve general deterrence for contemptuous acts of this nature. A short custodial sentence of five days would be sufficient to register the seriousness of his breach and to deter such behaviour: at [86] to [88].

AG v Guardian Newspapers Ltd [1987] 1 WLR 1248 (refd)

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

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

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

Allport Alfred James v Wong Soon Lan [1992] 2 SLR (R) 100; [1992] 2 SLR 385 (refd)

Barrell Enterprises, Re [1973] 1 WLR 19 (refd)

Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother [2008] 1 WLR 2327 (refd)

Cartier International BV v Lee Hock Lee [1992] 3 SLR (R) 340; [1993] 1 SLR 616 (refd)

Grand Union Insurance Co Ltd v Clyde & Co [1988] HKC 464 (distd)

Ho Kok Cheong, Re [1995] SGHC 121 (refd)

Juma'at bin Samad v PP [1993] 2 SLR (R) 327; [1993] 3 SLR 338 (folld)

Ladd v Marshall [1954] 1 WLR 1489 (folld)

Lee Shieh-Peen Clement v Ho Chin Nguang [2010] 4 SLR 801 (refd)

Lim Meng Chai v Heng Chok Keng [2001] SGHC 33 (refd)

Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd [2012] 4 SLR 1169 (refd)

OCM Opportunities Fund II, LP v Burhan Uray [2005] 3 SLR (R) 60; [2005] 3 SLR 60 (refd)

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

Potash Corp of Saskatchewan and Potash Corp of Saskatchewan Sales v Keith Barton 2001 SKCA 56 (distd)

Precious Wishes Ltd v Sinoble Metalloy International (Pte) Ltd [2000] SGHC 5 (refd)

Tan Khee Eng John, Re [1997] 1 SLR (R) 870; [1997] 3 SLR 382 (refd)

Sembcorp Marine Ltd v Aurol Anthony Sabastian [2012] 2 SLR 645 (refd)

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

Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 (refd)

Adoption of Children Act (Cap 4, 2012 Rev Ed) s 12 (6)

Bankruptcy Act (Cap 20, 2009 Rev Ed) s 38 (1) (c)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 28B

Criminal Appeal Act 1968 (c 19) (UK) s 23 (1)

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.

Quentin Loh J

1 This judgment follows upon my earlier judgment, Sembcorp Marine Ltd v Aurol Anthony Sabastian [2012] 2 SLR 645 where, upon an application for committal for contempt of court by the applicant Sembcorp Marine Ltd (‘SCM’), I found the respondent, Mr Anthony Sabastian Aurol (‘Mr Aurol’) guilty of and duly convicted him for contempt of court on 19 March 2012. I found that Mr Aurol had knowingly and cynically breached an order of court (‘the Sealing Order’) to keep the Summons for sealing (‘the Summons’) and the supporting affidavit (‘Wong's 5 th Affidavit’) sealed in the interim until the court could finally decide whether to seal another affidavit (‘Wong's 4 th Affidavit’) filed in Suit No 315 of 2010 (‘the Main Suit’).

2 After I gave judgment, but before I heard the parties on sentence, Mr Aurol applied for (a)leave to adduce further evidence and (b)leave to make further argument on a point of law, viz,that the interim sealing order was different from and was not a non-disclosure order.

3 Iheard the applications in chambers on 24 April 2012 and reserved judgment. I gave my decision on 11 May 2012, disallowing the application for leave to adduce further...